DAVID POST'S TIMID REVIEW OF LESSIG'S FREE CULTURE. 

David G. Post, professor of law at Temple University's Beasley School of Law, reviews Lawrence Lessig's new book, Free Culture.  A draft of the review (purportedly to appear in the July issue of Reason magazine), is available (as a PDF file) at Post's website.  It is a timid, cowardly review that mentions a powerful critique of Lessig, but mentions only; Post is too timid to apply the critique to Lessig's new book.  

(I do not know if Post's review ever made it into Reason magazine; I cannot find mention of the review on the Reason website, but in any event, my remarks apply only to the draft review to which I link directly.  Post can hardly complain -- he has proudly displayed the draft on his website.) 

Post begins his review with a description of Lessig:  "Lessig, a professor at Stanford Law School, has transformed himself from a relatively obscure law professor toiling away in the academic vineyards – highly regarded by colleagues, to be sure, but unknown by the world at large – into one of the best known ‘public intellectuals’ on the planet.”  

I am sure that Post doesn’t want to insult or irritate one of the best-known public intellectuals on the planet, and with a fawning description like that, Post has no reason for worry, and Lessig no cause for irritation.  (Lessig is hardly one of the best-known public intellectuals on the planet, unless one believes that a few thousand lawyers, academics, and readers of Wired magazine are a world unto themselves.)  

Post knows, however, that Lessig has a cause, or in Post’s way of describing it, a Cause.  Post tells us that in “Free Culture – his third (and, I think, best) book – he [Lessig] shows his hand: He is summoning us to the barricades.  Rousing the rabble.  He has a Cause, and he wants us to rally to it – to see how urgent a cause it is, and to fight on its behalf.”  

I imagine that if Lessig had become one of the best-known public intellectuals on the planet before his latest book, that Lessig would already have shown us his hand.  No matter – perhaps, Post had not previously seen the substance of Lessig’s work, having been blinded by Lessig’s celebrity and notoriety.  

Post understands that “ [l]aw professors, it must be said, do not ordinarily make good rabble-rousers.”  True enough, but odd for Post to declare that “[l]aw professors, though, serve the Goddess of Reason, alone, and she is, as the saying goes, a jealous mistress.”  I can never remember being young enough to believe something like that, and I would hope that no one who reads the review has ever been so foolish either.  If Post believes that law professors are devoted to the ‘Goddess of Reason,’ as though they were secular monks, he’s deluded and self-aggrandizing; if Post believes that we’ll believe it, then he thinks that we’re deluded, naïve, or stupid.  

Post tells us that Lessig’s “Cause is the protection of that imaginary piece of real estate known as ‘the public domain’ and the ‘free culture’ has always, Lessig argues, been built upon and interleaved with it – the culture of transformative art, of sharing and borrowing and re-borrowing and re-transforming…”  ‘Transformative art’: wonderful term for art, for those who want to seem to be more specific, more versed in the deeper nature of things.  It’s just another empty phrase in search of a rationalized meaning.      

Post describes how Lessig believes that an imbalance in copyright law, a “scheme for regulating a small corner of the universe of creativity…has morphed into a system under which (virtually) all creative output is subject to rights that are (virtually) unlimited in scope and (virtually) perpetual in duration.  Just about every bit of creative expression committed to paper or canvas or computer screen anywhere on earth – every e-mail you right, every doodle on your office notepad, every photograph you take or scan, or send to your grandmother – is, under current law, protected by copyright.”  

Even true, America is free, and our culture vibrant.  (Post might also want to consider that almost everything I say or write is subject to defamation law, but that hardly stops me, or others, from saying all kinds of things.) 

Note, too, that Lessig’s celebrity rests on an attack on current copyright and the ownership interest that it creates – that’s an easy case to make in academia, where private property has few defenders, and free enterprise is misunderstood, and deliberately, falsely maligned repeatedly.  Lessig, a professor at Stanford, requires no courage at all to argue for a commons, where individual, private right is swept away in the name of community needs. Small wonder that Lessig has become a celebrity – to the extent that he has – by arguing for dragging private ownership interests into the compost heap of the commons.  That’s an orthodoxy of Lessig’s environment, and he’s merely publishing ideas that dozens of his fellow academics English literature, sociology, art history, or gender studies espouse at parties and rallies across campus.  Advocacy of private ownership and property would be the courageous position.          

Post acknowledges, but timidly refuses to consider, a powerful response to Lessig’s view that copyright law has become s stifling restriction on the creation of intellectual property. Post admits that "[t]his is, after all, property that we’re talking about here; without property there can be no markets, and robust free markets remain the bets way yet devised for processing all the information about individual needs and wants and translating that information into production and allocation decisions regarding good and services.  Copyright law, in this view, is a wonderful, decentralized, property-creation machine; everyone gets to ‘own’ his or her creative expression, and to do with it (or not to do with it)  whatever he or she pleases.  The more, the better; the broader and deeper the scope of copyright, the better the markets for creative expression will function, and the better the markets for creative expression function, the more creative expression we’ll get.” 

(Post is wrong to call copyright law decentralized – it is a uniform, Federal standard most often at play, state copyright law provisions not withstanding.  It is individual, private creation that is decentralized, as one would expect in a free market.) 

Post concludes that this ‘libertarian’ and free-market view of copyright is “a respectable opinion, and [Post is] not sure that Lessig has an adequate rejoinder to it.  Well, Professor Post, does he – in your view – or does he not?  Before the celebrity intellectual, Post trembles, timid and uncertain.  

This is a powerful critique, wholly for being right.  Copyright extends the power of property holding to all, and offers small and big alike ownership and control over their own free expression.  From ownership, the right to sell, and the incentive to produce still more, and better.  No property, no market; no market, no free profitable exchange; no free profitable exchange, no lasting incentive to produce. Copyright has not made American and the world less creative; copyright gives Americans the incentive to produce more than ever before.  

Post tells us that Lessig’s  “Free Culture, then, is not the final world on the subject; there will be responses and debate, and counter-debate.”  True, of course, but a disappointing recommendation, and review.  If Lessig’s work is a mere starting-point, then Lessig has spent quite a bit of his supposed notoriety and celebrity merely to begin something.  Even this beginning is more than Post can handle, and he shakes before a celebrity’s mere start, unwilling to assess the critique that would, fairly, expose Lessig’s rabble-rousing Cause as a misguided, erroneous effort.     

 FRANK GILBERT 

JULY 6, 2004