on the other side is not silly. If it’s permissible to use technology to make copyrighted works available, why isn’t it permissible to gather data about who uses what works? That data gathering is not part of the copyright itself; it is a byproduct of the technology. And as our tradition has never had this technical capacity before, it is hard to say a choice was made about it in the past.
Permission Culture vs. Free
I’ve already described the limits copyright law places on itself. These limits, as I argued, reflect important values. They express the balance that copyright law aims to be.
But what is too often missed in this discussion of balance is any sense of perspective. We focus on the gradual shifts in the law but miss the profound sense in which the significance of the law has changed.
This change is produced by the unintended interaction between the architecture of digital technologies and the architecture of the law.
Copyright law at its core regulates “copies.” In the analog world, there were very few contexts in which one produced “copies.” As Jessica Litman described more than a decade ago,
At the turn of the century, U.S. copyright law was technical, inconsistent, and difficult to understand, but it didn’t apply to very many people or very many things. If one were an author or publisher of books, maps, charts, paintings, sculpture, photographs or sheet music, a playwright or producer of plays, or a printer, the copyright law bore on one’s business. Booksellers, piano-roll and phonograph record publishers, motion picture producers, musicians, scholars, members of Congress, and ordinary consumers could go about their business without ever encountering a copyright problem[58].
Thus there were many ways in which you could use creative work in the analog world without producing a copy.
Digital technology, at its core, makes copies. Copies are to digital life as breathing is to our physical life. There is no way to use any content in a digital context without that use producing a copy. When you read a book stored on your computer, you make a copy (at least in the RAM memory to page through the book). When you do anything with digital content, you technically produce a copy.
This technical fact about digital technologies, tied to the technical architecture of the law, produces a profound shift in the scope or reach of the law of copyright that too many simply miss: While in the analog world, life was sans copyright law; in the digital world, life is subject to copyright law. Every single act triggers the law of copyright. Every single use is either subject to a license or illegal, unless deemed to be “fair use.” The emergence of digital technologies has thus radically increased the domain of copyright law — from regulating a tiny portion of human life, to regulating absolutely every bit of life on a computer.
Now if all you think about is protecting the distribution of professionally created culture, this might not concern you much. If you’re trying to stop “piracy”, then a regime that says every use requires permission is a regime that gives you a fairly broad range of tools for stamping out piracy.
But though you wouldn’t notice this listening to the debates surrounding copyright law just now, in fact, protecting the distribution of professionally created culture is not the only, or even, I suggest, the most important part of culture. And indeed, from a historical perspective, top-down, professionally produced culture is but a tiny part of what makes any culture sing. The 20th century may have been an exception to this rule, but no Congress voted to make professional culture the only legal culture within our society.
Standing alongside professional culture is amateur culture — where amateur doesn’t mean inferior or without talent, but instead culture created by people who produce not for the money, but for the love of what they do. From this perspective, there is amateur culture everywhere — from your dinner table, where your father or sister tell jokes that take off from the latest political scandal or the latest Daily Show; from your basement, where your brother and his three best friends are causing permanent damage to their eardrums as they try to become the next Rolling Stones; from your neighbors who gather each Thursday and Sunday to sing in a church choir; from your neighborhood schools, where kids and teachers create art or music in the course of learning about our culture; from the kids at your neighborhood school, who tear their pants or wear their shirts in some odd way, all as a way to express and make culture.
This amateur culture has always been with us, even if it is to us today, as Dan Hunter and Greg Lastowska put it, “hidden[59]”. It is precisely how the imagination of kids develops[60]; it is how culture has always developed. As Siva Vaidhyanathan writes,
widespread democratic cultural production (peer-to-peer production, one might say) . . . merely echoes how cultural texts have flowed through and been revised by discursive communities everywhere for centuries. Texts often undergo a process similar to a game of “telephone”, through which a text is substantially — sometimes almost unintentionally — distorted through many small revisions. . . . Such radical textual revisions have occurred in other contexts and have helped build political critiques, if not movements. For instance, historian Lawrence Levine (1988) has documented how working-class players and audiences in nineteenth-century America adapted and revised the works of William Shakespeare to their local contexts, concerns and ideologies. And historian Eric Lott (1993) has shown how Uncle Tom’s Cabin was reworked by working-class white communities to aid the cause of racial dominance instead of the Christian liberationist message the book was intended to serve[61].
Importantly, too, this kind of cultural remix has historically been free of regulation. No one would think that as you tell a joke around your dinner table, or sing songs with your friends, or practice to become the next Rolling Stones, you need a lawyer standing next to you, clearing the rights to “use” the culture as you make your creative remix. The law of copyright, historically, has been focused on commercial life. It has left the noncommercial, or beyond commercial, creativity free of legal regulation.
All this has now changed, and digital technologies are responsible. First, and most important, digital technologies have radically expanded the scope of this amateur culture. Now the clever remix of some political event or the latest song by your favorite band are not just something you can share with your friends. Digital technologies have made it simple to capture and share this creativity with the world. The single most important difference between the Internet circa 1999 and the Internet circa today is the explosion of user-generated creativity — from blogs, to podcasts, to videocasts, to mashups, the Internet today is a space of extraordinary creativity.
Second, digital technologies have democratized creativity. Technology has given a wide range of potential creators the capacity to become real. “People are waking from their consumerist coma”, one commentator describes[62]. As DJ Danger Mouse put it at the Web 2.0
