PART II

The Rise of Free Culture

To the commoners seeking to build a new cultural universe, the failure of the Eldred case in the U.S. Supreme Court was both depressing and liberating. It confirmed what the legal scholars of the 1990s had long suspected— that both Congress and the courts were captives to a backward-looking vision of copyright law. Government was tacitly committed to a world of centralized and commercial mass media managed by elite gatekeepers. That was not likely to change soon.

As for helping build a new digital republic with a more open, democratic character, the Clinton administration made its intentions clear in its infamous White Paper. It wanted to convert the gift economy of the Internet into a wall-to-wall marketplace. It wanted to give sellers absolute control over content and limit the disruptions of innovative newcomers. The government, acting on behalf of the film, record, and book industries, had no desire to legitimize or fortify the sharing culture that was fast gaining a hold on the Internet. Quite the contrary: strengthening the public’s fair use rights, access to the public domain, and online free speech rights might interfere with the perceived imperatives of electronic commerce. Freedom would therefore have to be defined as the freedom of consumers to buy what incumbents were selling, not as a robust civic freedom exercised by a sovereign citizenry.

By the conclusion of Eldred, in 2003, it was clear that the copyright dissidents were not just confronting one policy battle or another; they were confronting an antiquated and entrenched worldview. While Lessig, Eldred, and the growing band of commoners realized that it was important to pay close attention to pending legislation and lawsuits, many of them also realized that the real challenge was to develop a new vision — and then try to actualize it.

A more affirmative, comprehensive vision was needed to supersede the limited intellectual parameters of copyright law.Copyright law was a mode of property discourse, after all, and that discourse simply could not adequately express the aspirations of hackers, citizen-journalists, librarians, academics, artists, democrats, and others trying to secure open online spaces for themselves. The online insurgents acknowledged the great importance of fair use and the public domain, but they also considered such doctrines to be vestiges of an archaic, fraying legal order. It was time to salvage what was valuable from that order, but otherwise instigate a new language, a new aesthetic, a new legal regime, a new worldview.

This meant venturing into risky, unknown territory. Law professors accustomed to working within the comfort of the academy would have to clamber onto public stages and set forth idealistic, politically inflected scenarios for Internet culture. Activists accustomed to rhetorical critiques would have to initiate pragmatic, results-driven projects. Free software hackers would have to invent new software and digital protocols. Volunteers would need to be enlisted and organized and funding secured to sustain bare-boned organizational structures. Wholly new constituencies would have to be imagined and mobilized and brought together into something resembling a new movement. Part II, The Rise of Free Culture, describes the building of this foundation from 2000 to 2005.