Free Use: A Remembrance

Jun 18, 2008 by JOE WINDISH, Technology Editor

Ongoing Associated Press actions have us all talking about Fair Use. I thought I’d use the opportunity to say a word about Free Use.

In a podcast of the Princeton University/Microsoft Intellectual Property Conference panel on Creativity and I.P. Law: How Intellectual Property Law Fosters or Hinders Creative Work from May 2006, Larry Lessig discussed the demise of Free Use.

The freedom to read – in a library, from a borrowed book, or from a book you bought – is a “free use.” In the digital realm, he explained, because every use requires a copy, every time we engage in any use it must be justified as either a “licensed use” or a “fair use.”

Once there were three kinds of uses: “free use,” “licensed use,” and “fair use.” If the publishers’ view of the world prevails — in the world they’d like to construct today — one day soon there will no longer be “free use.” There will only be “licensed use” or “fair use.”

Lessig, a lawyer and law professor, compares the legal code that is the law of the land to the computer code that determines how our software works, how our computers function, and how we access the Internet. Thus, explains Lessig, this computer code has become a twenty-first century means of social control.

In his book Code and Other Laws of Cyberspace, he coined the dictum that “Code is law.” I follow Lessig and others with my own call for an architecture of freedom. The only way to an architecture of freedom is through an awareness of this architecture of control. Let’s all please be sure to pay attention!

I have worked in what is now called “citizen journalism” or “user-created content” for decades; since long before it was cool, way back when it was clearly marginal media. I am no patsy for the big media companies.

So when I see today, in light of what I wrote last night, that others who I respect and who ought to know are taking that AP price list as for real, I’m worried. AP has to know it will not win on that one! They are not dumb! I’m trying to find out more…

UPDATE: AP Director of Media Relations Paul Colford clarifies:

The “price list,” as you call it, is not aimed at bloggers. In fact, that tool predates the case of these past few days.

AP partners with iCopyright to automate fulfillment of routine requests for rights to republish AP material, either from AP-hosted sites or member and customer sites carrying AP content.  The licensing options vary greatly, from an array of free uses – such as e-mail, print and save – through paid options up to and including large-scale corporate reprints of excerpts, full articles or photos.

I continue to believe they are trying to work this out, the question is how to get there from here. From our side, the blogger side, I’m not seeing a road map!

LATER STILL: Jeff’s back, swinging. More here and here.

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