Law in the Internet Society
Liberalizing Intellectual Property

Introduction Matters of intellectual property and copyright have become of great contention in the 21st century. While today’s generation of digital savvy post-boomers have taken file-sharing and streaming video for granted, those who hold a commercial stake in the arts such as film, music and literature are concerned that digital distribution technologies enable individuals to hijack their hard-earned labors and rob them of the profit that is supposed to be entitled to them by law. In effect, digital distribution technologies have made criminals of us all and the only sane option is to liberalize intellectual property for the betterment of societies and economies.

Problem Presented These matters are of great concern to Stanford law professor Lawrence Lessig, who for the last half-decade has made a name for himself discussing matters of intellectual property and co-founding the Creative Commons system of intellectual property rights. Lessig (21-30) reasons that in times past, intellectual property laws were designed to ensure that artists and innovators were able to profit from their creations, but were consistently enforced in a manner that ensured that they would not restrict creativity and stifle progress. However, Lessig (128-136) argues that in recent times, the regulatory scope of the law has expanded to such an extent that current definitions of intellectual property restricts the desires of markets, evades legal traditions, and eclipses the original intent of intellectual property law. These developments are largely a result of powerful copyright holders who have lobbied strongly for the perpetuation of near limitless copyright extensions and increasing the scope of intellectual property. The result is that the cultural past and cultural future is becoming increasingly regulated to restrict progress and creativity and that it has effectively criminalized the sharing of culture for the privilege of monopolists and the wealthy.

Problem Developed MIT media studies professor Henry Jenkins asks if society would be any better if cultural participation were entirely restricted in favor of those who hold intellectual property, noting that between the late 19th century and the early 20th century, various creators revised and parodied Lewis Carroll’s Alice in Wonderland for varying purposes, to varied effects promoting various ideologies:

[…] Alice parodies contributed considerably to Carroll's subsequent reputation. Today, after Shakespeare's work and the Bible, Lewis Carroll's writings are the most often cited in the English-speaking world. Now try a thought experiment. Imagine that the Wonderland stories were first appearing in 2000 as products of Disney or Viacom, and [parodies were published on the Internet]. How long would it be before they were shut down by "cease-and-desist" letters? How many people would download "A New Alice in the Old Wonderland" before a studio flack asserted Disney's exclusive control over Humpty Dumpty, The Cheshire Cat or The Red Queen? (Jenkins 2000) This is not to suggest that the concerns of intellectual property holders are in no way valid. Rather, intellectual property holders are threatened by new ways of cultural sharing that in previous eras, was largely limited to those who had the resources to afford to participation. Those forms of cultural participation that were affordable to the average citizen were never of any concern to intellectual property holders, simply because they were not deemed as threatening. Re-telling a movie on a park bench or singing songs by the campfire remained unregulated because intellectual property holders saw no reason to do so. Digital technologies empower the average citizen to share their re-tellings and re-interpretations of stories and music, as well as redistribute identical copies of original works. Their response – to lobby vigorously for the expansion of their property rights and to file suit against those who deprive them of the profit they feel entitled to – is one that originates in fear. As Lessig (126) observes, “It is as American as apple pie to consider the happy life you have as entitlement, and to look to the law to protect it if something comes along to change that happy life.” In evaluating the effects of MP3s and digital music on the recording industry, Ferreira, et al, observe that what intellectual property holders fail to recognize is that technologies such as the Internet are merely restructuring the value chain and destabilizing old assumptions about doing business with intellectual properties, and in effect refuse to innovate the means to maximize the value of a new intellectual property distribution infrastructure.

Argument Suggested Science fiction author Cory Doctorow argues that many of the current problems and the present debates regarding copyright is that ‘intellectual property’ itself is a misnomer and a euphemism, one which obscures some of the qualities of ‘knowledge’ in favor of validating a commercial and political agenda. Doctorow notes that property implies exclusivity, something which is not true for knowledge:

“If you trespass on my flat, I can throw you out (exclude you from my home). If you steal my car, I can take it back (exclude you from my car). But once you know my song, once you read my book, once you see my movie, it leaves my control. Short of a round of electroconvulsive therapy, I can't get you to un-know the sentences you've just read here.” (Doctorow 2008)

In effect, ‘intellectual property’ as a concept attempts to shoehorn ‘knowledge’ into a legal vernacular that does not capture these nuances. If artists and creators are to assert their right to profit from creative works in any responsible and ethical manner, these nuances must be recognized. Furthermore, they must not infringe on the right to share and participate in cultural dissemination; they must not restrict creativity and the ability to innovate and create derivative works and they must not serve to protect the interests of property holders at the expense of progress. In that sense, ownership of knowledge and information is a rather nonsensical concept, not just from the ideological standpoint of liberal nam-by-pam-bies and closet socialists, but from a legalistic one as well. The legal framework that was constructed in centuries past to protect the commercial interests of artists and creators was as both Lessig and Doctorow opine, designed to acknowledge the unique properties of knowledge. ‘Intellectual property’ made sense when knowledge could be regulated in corporeal mediums, but now that digital distribution has made this relationship between medium and knowledge more mutable, it is time for us to recognize that knowledge should be free for both consumers and artists to dictate the terms of copyright on a broad community level.

Suggestion included in Conclusion Already there exist attempts to improve this situation, whose chief problem is that the existing copyright laws tend to dictate a uniform set of rights across creative works. Enter the Creative Commons system, a series of licenses designed to allow artists and creators to dictate the terms by which their works can be used, attempts to expand the freedoms of creative works on top of existing copyright law. By applying these licenses to their works, creators can grant freedoms that ordinary copyright law does not allow because of its presumption that ‘one copyright fits all.’ Creative Commons is in no way a compromise for the existing dilemma in intellectual property. It is a solution that attempts to truly liberate creative works by allowing communities to decide how knowledge is used by forging contracts between creators and consumers, but without abnegating the right of creators to derive value from their works.


Lessig, Lawrence. Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. New York: Penguin Press, 2004. Jenkins, Henry. “Digital Land Grab.” Technology Review, March 2000. Retrieved online on January 27, 2009 from: Ferreira, Pedra; Martin, Jonathan; Yang, Jun and Han-Shen Yuan. “Impact of MP3 on the Music Industry.” Strategic Computing and Communications Technology. Retrieved online on January 27, 2009 from: Doctorow, Cory. “‘Intellectual property’ is a silly euphemism.” The Guardian, 21 February 2008. Retrieved online on January 27, 2009 from:

-- KyuYoungLee - 30 Jan 2009

  • This is accurate, so far as it goes, like doing a Google search for "intellectual property controversy" and writing up the first page of results. You will hardly find me disagreeing with you about the value of Creative Commons, except that you haven't exactly explained the value of CC. Larry has always been careful to point out that CC was a generalization of Richard Stallman's free software movement, and what Larry and I (and Jimmy Wales) have been doing for the past ten years could all have been described in that way. You might have benefited from which wasn't returned to you by Google because Google doesn't know it's there.



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r2 - 02 Feb 2009 - 13:18:53 - EbenMoglen
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