Lawrence Lessig's ‘Bleak House’: A Critique of “Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity” or “How I learned to stop worrying and love internet law”1

Abstract

The single most significant issue that intellectual property lawyers have had to deal with in recent years has been the impact of the Internet on copyright. It has raised more than mere legal queries, obliging society as a whole to reconsider the fundamental bargain of capitalism – private gain versus the public good. However, the authors progressed beyond this specific social bargain to consider the role played by commercial giants that either own or have a shared interest in the works of their creative artists, which in turn requires us to scrutinize the true purpose of copyright law – the guarantee of a social bargain or a tool for pure economic protection. In an attempt to chart a suitable path for the future development of copyright law, as applicable to commercial giants and the Internet, the authors have chosen to critique Professor Lessig's theory, namely that the Internet and intellectual property law are being used by powerful media forces as a tool for suppressing creativity in the pursuit of pure economic benefit. The bleak view adopted by Lessig of the Internet and related intellectual property law, which he perceived as impeding progress, frustrating creativity and detracting from the positive social impact the Internet can have on society, is examined and ultimately regarded as being the equivalent of Dickens' ghost of Christmas yet to come and grounded in the Chancery lawyers of Victorian England depicted in Dickens' Bleak House.3 The authors conclude that the fundamental bargain that must be honoured, no matter what the social or commercial marketplace may be, is that a creator must be afforded such legal protection as to induce him or her to create. Whilst this may eventually amount to an updated and slightly more pragmatic version of current intellectual property law, it should certainly amount to more than the Creative Commons licences that were championed by Lessig. The authors welcome comment and discussion.