In Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, Lawrence Lessig warns that the health of the "environment of creativity" has been endangered by the combination of changes in intellectual property law, increased concentration of media ownership and transformations in technology. Lessig maintains that what we face is akin to an environmental crisis, with the crucial difference being that cultural rather than physical resources are under siege. Curiously, though, the world depicted in Free Culture is at odds with Lessig's dystopian vision, for it is a vibrant place where technological innovation, creative endeavors, and public discussion of political issues flourish. To be sure, real problems exist, and addressing them will require a number of difficult determinations, including whether the hazards posed by new technologies outweigh their benefits and how best to ensure that property rights evolve to promote the public interest. Regrettably, however, Free Culture promises to be of little help in crafting useful solutions to these problems. In writing Free Culture, Lessig has set himself a high hurdle, namely to convince his readership that the saga of intellectual property in recent decades represents nothing less than a modern-day Miltonian epic: Paradise was lost when a property rights Eden was infested by the serpent of venal corporate interests, but might be regained through adherence to the reform program outlined in Free Culture. Lessig fails to clear this hurdle for the simple reason that, taken together, the stories he offers in support of his thesis tell a richer, more complicated, and ultimately more interesting tale than the one he has in mind.

Regulation of virtual worlds has become an important issue in cyberspace law as more and more people spend increasing amounts of their lives in these spaces. This essay discusses the basic questions of freedom and regulation in virtual environments. There are three kinds of freedom in virtual worlds. The first is the freedom of the players to participate in the virtual world through their in-game representations, or avatars. This is the freedom to play. The second is the freedom of the game designer to plan, construct, and maintain the virtual world. This is the freedom to design. A third is the collective right of the designers and players to build and enhance the game space together. This is the freedom to design together. These rights overlap in important respects with the constitutional rights of freedom of speech, expression and association. Virtually all activity in virtual worlds must begin as some form of expression, and therefore virtually all forms of legally redressable injury in virtual worlds will be some form of communications tort. However, the law of the First Amendment, as it currently exists, does not adequately protect many important features of the rights to design and play. Many virtual spaces are rapidly becoming sites of real world and virtual world commerce. In the future game designers will likely attempt to invoke the First Amendment to avoid regulation of their business practices. However, game designers will lose First Amendment protection to the extent that they encourage real-world commodification of virtual items. The article concludes by discussing different models of regulation of virtual worlds, including the model of consumer protection, the virtual world as company town, and virtual worlds as places of public accommodation.

Some speech risks inciting or aiding serious crimes. Other speech risks causing only minor crimes. Some searches and seizures are aimed at catching kidnappers, others at catching bookies. Should constitutional doctrine draw lines that turn on crime severity? And if it should, how should these lines be drawn? Commentators and judges have often urged that the first question be answered yes. And yet the trouble with a yes answer is that it requires courts to answer the second question - which isn't easy, given how bitterly people often disagree about the severity of various crimes (for instance, white-collar crimes, drug crimes, copyright infringement, or even burglary). Surprisingly, this matter has rarely been discussed broadly, cutting across various constitutional provisions, such as free speech, the Fourth Amendment, the right to jury trial, and the Eighth Amendment. This Essay tries do so. It identifies four possible approaches to judging crime severity in constitutional doctrine. It discusses the pluses and minuses of each approach. And it concludes that two simple answers - that such severity distinctions are always improper, and that they are unproblematic - are mistaken.