On December 17,1903, on a windy North Carolina beach for just shy of one hundred seconds, the Wright brothers demonstrated that aheavier-than-air, self-propelled vehicle could fly. The moment was electricand its importance widely understood. Almost immediately, therewas an explosion of interest in this newfound technology of mannedflight, and a gaggle of innovators began to build upon it.

At the time the Wright brothers invented the airplane, Americanlaw held that a property owner presumptively owned not just the surfaceof his land, but all the land below, down to the center of the earth,and all the space above, to "an indefinite extent, upwards."1 For manyyears, scholars had puzzled about how best to interpret the idea thatrights in land ran to the heavens. Did that mean that you owned thestars? Could you prosecute geese for their willful and regular trespass?Then came airplanes, and for the first time, this principle of Americanlaw-deep within the foundations of our tradition, and acknowledgedby the most important legal thinkers of our past-mattered. Ifmy land reaches to the heavens, what happens when United flies overmy field? Do I have the right to banish it from my property? Am I allowed to enter into an exclusive license with Delta Airlines? Could weset up an auction to decide how much these rights are worth?

In 1945, these questions became a federal case.When North Carolinafarmers Thomas Lee and Tinie Causby started losing chickensbecause of low-flying military aircraft (the terrified chickens apparentlyflew into the barn walls and died), the Causbys filed a lawsuit sayingthat the government was trespassing on their land. The airplanes,of course, never touched the surface ofthe Causbys' land. But if, asBlackstone, Kent, and Coke had said, their land reached to "an indefi-nite extent, upwards," then the government was trespassing on theirproperty, and the Causbys wanted it to stop.

The Supreme Court agreed to hear the Causbys' case. Congress haddeclared the airways public, but if one's property really extended to theheavens, then Congress's declaration could well have been an unconstitutional"taking" of property without compensation. The Court acknowledgedthat "it is ancient doctrine that common law ownership ofthe land extended to the periphery of the universe." But Justice Douglashad no patience for ancient doctrine. In a single paragraph, hundreds ofyears of property law were erased. As he wrote for the Court,[The] doctrine has no place in the modern world. The air is apublic highway, as Congress has declared. Were that not true,every transcontinental flight would subject the operator to countlesstrespass suits. Common sense revolts at the idea.To recognizesuch private claims to the airspace would clog these highways, seriouslyinterfere with their control and development in the publicinterest, and transfer into private ownership that to which onlythe public has a just claim.2

"Common sense revolts at the idea."

This is how the law usually works.Not often this abruptly or impatiently,but eventually, this is how it works. It was Douglas's style not todither. Other justices would have blathered on for pages to reach the conclusion that Douglas holds in a single line: "Common sense revoltsat the idea." But whether it takes pages or a few words, it is the specialgenius of a common law system, as ours is, that the law adjusts to thetechnologies of the time. And as it adjusts, it changes. Ideas that wereas solid as rock in one age crumble in another.

Or at least, this is how things happen when there's no one powerfulon the other side of the change. The Causbys were just farmers. Andthough there were no doubt many like them who were upset by thegrowing traffic in the air (though one hopes not many chickens flewthemselves into walls), the Causbys of the world would find it veryhard to unite and stop the idea, and the technology, that the Wrightbrothers had birthed. The Wright brothers spat airplanes into thetechnological meme pool; the idea then spread like a virus in a chickencoop; farmers like the Causbys found themselves surrounded by "whatseemed reasonable" given the technology that the Wrights had produced.They could stand on their farms, dead chickens in hand, andshake their fists at these newfangled technologies all they wanted.They could call their representatives or even file a lawsuit. But in theend, the force of what seems "obvious" to everyone else-the power of"common sense"-would prevail. Their "private interest" would not beallowed to defeat an obvious public gain.

Edwin Howard Armstrong is one of America's forgotten inventorgeniuses. He came to the great American inventor scene just after thetitans Thomas Edison and Alexander Graham Bell. But his work inthe area of radio technology was perhaps the most important of anysingle inventor in the first fifty years of radio. He was better educatedthan Michael Faraday, who as a bookbinder's apprentice had discoveredelectric induction in 1831. But he had the same intuition abouthow the world of radio worked, and on at least three occasions, Armstronginvented profoundly important technologies that advanced ourunderstanding of radio.

On the day after Christmas, 1933, four patents were issued to Armstrongfor his most significant invention-FM radio. Until then, consumerradio had been amplitude-modulated (AM) radio. The theoristsof the day had said that frequency-modulated (FM) radio could neverwork. They were right about FM radio in a narrow band of spectrum.But Armstrong discovered that frequency-modulated radio in a wideband of spectrum would deliver an astonishing fidelity of sound, withmuch less transmitter power and static.

On November 5, 1935, he demonstrated the technology at a meetingof the Institute of Radio Engineers at the Empire State Building inNew York City. He tuned his radio dial across a range of AM stations,until the radio locked on a broadcast that he had arranged from seventeenmiles away. The radio fell totally silent, as if dead, and then with aclarity no one else in that room had ever heard from an electrical device,it produced the sound of an announcer's voice: "This is amateurstation W2AG at Yonkers, New York, operating on frequency modulationat two and a half meters."

The audience was hearing something no one had thought possible:A glass of water was poured before the microphone in Yonkers; itsounded like a glass of water being poured. . . . A paper wascrumpled and torn; it sounded like paper and not like a cracklingforest fire. . . . Sousa marches were played from records and a pianosolo and guitar number were performed. . . . The music wasprojected with a live-ness rarely if ever heard before from a radio"music box."3

As our own common sense tells us, Armstrong had discovered avastly superior radio technology. But at the time of his invention, Armstrongwas working for RCA. RCA was the dominant player in thethen dominant AM radio market. By 1935, there were a thousand radiostations across the United States, but the stations in large cities were allowned by a handful of networks.

RCA's president, David Sarnoff, a friend of Armstrong's, was eagerthat Armstrong discover a way to remove static from AM radio. SoSarnoff was quite excited when Armstrong told him he had a devicethat removed static from "radio." But when Armstrong demonstratedhis invention, Sarnoff was not pleased.

I thought Armstrong would invent some kind of a filter to removestatic from our AM radio. I didn't think he'd start a revolution-start up a whole damn new industry to compete with RCA.4Armstrong's invention threatened RCA's AM empire, so the companylaunched a campaign to smother FM radio.While FM may havebeen a superior technology, Sarnoff was a superior tactician. As one authordescribed, The forces for FM, largely engineering, could not overcome theweight of strategy devised by the sales, patent, and legal officesto subdue this threat to corporate position. For FM, if allowed todevelop unrestrained, posed . . . a complete reordering of radiopower . . . and the eventual overthrow of the carefully restrictedAM system on which RCA had grown to power.5 RCA at first kept the technology in house, insisting that further tests were needed.When, after two years of testing, Armstrong grewimpatient, RCA began to use its power with the government to stallFM radio's deployment generally. In 1936, RCA hired the former headof the FCC and assigned him the task of assuring that the FCC assignspectrum in a way that would castrate FM-principally by moving FMradio to a different band of spectrum. At first, these efforts failed. Butwhen Armstrong and the nation were distracted by World War II,RCA's work began to be more successful. Soon after the war ended, theFCC announced a set of policies that would have one clear effect: FMradio would be crippled. As Lawrence Lessing described it,

The series of body blows that FM radio received right after thewar, in a series of rulings manipulated through the FCC by thebig radio interests, were almost incredible in their force and deviousness.6

To make room in the spectrum for RCA's latest gamble, television,FM radio users were to be moved to a totally new spectrum band. Thepower of FM radio stations was also cut, meaning FM could no longerbe used to beam programs from one part of the country to another.(This change was strongly supported by AT&T, because the loss ofFM relaying stations would mean radio stations would have to buywired links from AT&T.) The spread of FM radio was thus choked, atleast temporarily.

Armstrong resisted RCA's efforts. In response, RCA resisted Armstrong'spatents. After incorporating FM technology into the emergingstandard for television, RCA declared the patents invalid-baselessly,and almost fifteen years after they were issued. It thus refused to payhim royalties. For six years, Armstrong fought an expensive war of litigationto defend the patents. Finally, just as the patents expired, RCAoffered a settlement so low that it would not even cover Armstrong'slawyers' fees. Defeated, broken, and now broke, in 1954 Armstrongwrote a short note to his wife and then stepped out of a thirteenthstorywindow to his death.

This is how the law sometimes works.Not often this tragically, andrarely with heroic drama, but sometimes, this is how it works. From thebeginning, government and government agencies have been subjectto capture. They are more likely captured when a powerful interest isthreatened by either a legal or technical change. That powerful interesttoo often exerts its influence within the government to get the governmentto protect it. The rhetoric of this protection is of course alwayspublic spirited; the reality is something different. Ideas that were assolid as rock in one age, but that, left to themselves, would crumble inanother, are sustained through this subtle corruption of our politicalprocess. RCA had what the Causbys did not: the power to stifle the effectof technological change.

There's no single inventor of the Internet. Nor is there any gooddate upon which to mark its birth. Yet in a very short time, the Internethas become part of ordinary American life. According to the PewInternet and American Life Project, 58 percent of Americans had accessto the Internet in 2002, up from 49 percent two years before.7That number could well exceed two thirds of the nation by the endof 2004.

As the Internet has been integrated into ordinary life, it haschanged things. Some of these changes are technical-the Internet hasmade communication faster, it has lowered the cost of gathering data,and so on. These technical changes are not the focus of this book.Theyare important. They are not well understood. But they are the sort ofthing that would simply go away if we all just switched the Internet off.They don't affect people who don't use the Internet, or at least theydon't affect them directly. They are the proper subject of a book aboutthe Internet. But this is not a book about the Internet.

Instead, this book is about an effect of the Internet beyond the Internetitself: an effect upon how culture is made. My claim is that theInternet has induced an important and unrecognized change in thatprocess. That change will radically transform a tradition that is as old asthe Republic itself. Most, if they recognized this change, would rejectit. Yet most don't even see the change that the Internet has introduced.

We can glimpse a sense of this change by distinguishing betweencommercial and noncommercial culture, and by mapping the law's regulationof each. By "commercial culture" I mean that part of our culturethat is produced and sold or produced to be sold. By "noncommercialculture" I mean all the rest. When old men sat around parks or onStreet corners telling stories that kids and others consumed, that wasnoncommercial culture.When Noah Webster published his "Reader,"or Joel Barlow his poetry, that was commercial culture.

At the beginning of our history, and for just about the whole of ourtradition, noncommercial culture was essentially unregulated. Ofcourse, if your stories were lewd, or if your song disturbed the peace,then the law might intervene. But the law was never directly concernedwith the creation or spread of this form of culture, and it left this culture"free." The ordinary ways in which ordinary individuals shared andtransformed their culture-telling stories, reenacting scenes from playsor TV, participating in fan clubs, sharing music, making tapes-wereleft alone by the law.

The focus of the law was on commercial creativity. At first slightly,then quite extensively, the law protected the incentives of creators bygranting them exclusive rights to their creative work, so that they couldsell those exclusive rights in a commercial marketplace.8 This is also, ofcourse, an important part of creativity and culture, and it has becomean increasingly important part in America. But in no sense was it dominantwithin our tradition. It was instead just one part, a controlledpart, balanced with the free.

This rough divide between the free and the controlled has nowbeen erased.9 The Internet has set the stage for this erasure and,pushed by big media, the law has now affected it. For the first time inour tradition, the ordinary ways in which individuals create and shareculture fall within the reach of the regulation of the law, which has expandedto draw within its control a vast amount of culture and creativitythat it never reached before. The technology that preserved thebalance of our history-between uses of our culture that were free anduses of our culture that were only upon permission-has been undone.The consequence is that we are less and less a free culture, more andmore a permission culture.

This change gets justified as necessary to protect commercial creativity. And indeed, protectionism is precisely its motivation. But theprotectionism that justifies the changes that I will describe below is notthe limited and balanced sort that has defined the law in the past. Thisis not a protectionism to protect artists. It is instead a protectionismto protect certain forms of business. Corporations threatened by thepotential of the Internet to change the way both commercial andnoncommercial culture are made and shared have united to inducelawmakers to use the law to protect them. It is the story of RCA andArmstrong; it is the dream of the Causbys.

For the Internet has unleashed an extraordinary possibility for manyto participate in the process of building and cultivating a culture thatreaches far beyond local boundaries. That power has changed the marketplacefor making and cultivating culture generally, and that changein turn threatens established content industries. The Internet is thus tothe industries that built and distributed content in the twentieth centurywhat FM radio was to AM radio, or what the truck was to therailroad industry of the nineteenth century: the beginning of the end,or at least a substantial transformation. Digital technologies, tied to theInternet, could produce a vastly more competitive and vibrant marketfor building and cultivating culture; that market could include a muchwider and more diverse range of creators; those creators could produceand distribute a much more vibrant range of creativity; and dependingupon a few important factors, those creators could earn more on averagefrom this system than creators do today-all so long as the RCAs of ourday don't use the law to protect themselves against this competition.Yet, as I argue in the pages that follow, that is precisely what is happeningin our culture today. These modern-day equivalents of the earlytwentieth-century radio or nineteenth-century railroads are using theirpower to get the law to protect them against this new, more efficient,more vibrant technology for building culture. They are succeeding intheir plan to remake the Internet before the Internet remakes them.It doesn't seem this way to many. The battles over copyright and theInternet seem remote to most.To the few who follow them, they seemmainly about a much simpler brace of questions-whether "piracy" willbe permitted, and whether "property" will be protected. The "war" thathas been waged against the technologies of the Internet-what MotionPicture Association of America (MPAA) president Jack Valenticalls his "own terrorist war"10-has been framed as a battle about therule of law and respect for property.To know which side to take in thiswar, most think that we need only decide whether we're for property oragainst it.

If those really were the choices, then I would be with Jack Valentiand the content industry. I, too, am a believer in property, and especiallyin the importance of what Mr.Valenti nicely calls "creative property."I believe that "piracy" is wrong, and that the law, properly tuned,should punish "piracy," whether on or off the Internet.

But those simple beliefs mask a much more fundamental questionand a much more dramatic change. My fear is that unless we come to seethis change, the war to rid the world of Internet "pirates" will also rid ourculture of values that have been integral to our tradition from the start.

These values built a tradition that, for at least the first 180 years ofour Republic, guaranteed creators the right to build freely upon theirpast, and protected creators and innovators from either state or privatecontrol. The First Amendment protected creators against state control.And as Professor Neil Netanel powerfully argues,11 copyright law, properlybalanced, protected creators against private control. Our traditionwas thus neither Soviet nor the tradition of patrons. It instead carved outa wide berth within which creators could cultivate and extend our culture.

Yet the law's response to the Internet, when tied to changes in thetechnology of the Internet itself, has massively increased the effectiveregulation of creativity in America. To build upon or critique the culturearound us one must ask, Oliver Twist-like, for permission first.

Permission is, of course, often granted-but it is not often granted tothe critical or the independent.We have built a kind of cultural nobility; those within the noble class live easily; those outside it don't. But it is nobility of any form that is alien to our tradition.The story that follows is about this war. Is it not about the "centralityof technology" to ordinary life. I don't believe in gods, digital orotherwise. Nor is it an effort to demonize any individual or group, forneither do I believe in a devil, corporate or otherwise. It is not a moralitytale. Nor is it a call to jihad against an industry.

It is instead an effort to understand a hopelessly destructive war inspiredby the technologies of the Internet but reaching far beyond itscode. And by understanding this battle, it is an effort to map peace.

There is no good reason for the current struggle around Internet technologiesto continue. There will be great harm to our tradition and culture if it is allowed to continue unchecked. We must come to understand the source of this war.We must resolve it soon.Like the Causbys' battle, this war is, in part, about "property."

The property of this war is not as tangible as the Causbys', and noinnocent chicken has yet to lose its life. Yet the ideas surrounding this"property" are as obvious to most as the Causbys' claim about the sacrednessof their farm was to them. We are the Causbys. Most of us take for granted the extraordinarily powerful claims that the owners of "intellectual property" now assert. Most of us, like the Causbys, treat these claims as obvious. And hence we, like the Causbys, object when a new technology interferes with this property. It is as plain to us as it was to them that the new technologies of the Internet are "trespassing" upon legitimate claims of "property." It is as plain to us as it was tothem that the law should intervene to stop this trespass.And thus, when geeks and technologists defend their Armstrong orWright brothers technology, most of us are simply unsympathetic. Commonsense does not revolt. Unlike in the case of the unlucky Causbys,common sense is on the side of the property owners in this war. Unlike the lucky Wright brothers, the Internet has not inspired a revolution on its side.

My hope is to push this common sense along. I have become increasinglyamazed by the power of this idea of intellectual propertyand, more importantly, its power to disable critical thought by policymakers and citizens. There has never been a time in our history whenmore of our "culture" was as "owned" as it is now. And yet there hasnever been a time when the concentration of power to control the usesof culture has been as unquestioningly accepted as it is now.

The puzzle is,Why?

Is it because we have come to understand a truth about the valueand importance of absolute property over ideas and culture? Is it becausewe have discovered that our tradition of rejecting such an absoluteclaim was wrong?

Or is it because the idea of absolute property over ideas and culturebenefits the RCAs of our time and fits our own unreflective intuitions?Is the radical shift away from our tradition of free culture an instanceof America correcting a mistake from its past, as we did after a bloodywar with slavery, and as we are slowly doing with inequality? Or is theradical shift away from our tradition of free culture yet another exampleof a political system captured by a few powerful special interests?

Does common sense lead to the extremes on this question becausecommon sense actually believes in these extremes? Or does commonsense stand silent in the face of these extremes because, as with Armstrongversus RCA, the more powerful side has ensured that it has themore powerful view?

I don't mean to be mysterious. My own views are resolved. I believeit was right for common sense to revolt against the extremism of theCausbys. I believe it would be right for common sense to revolt againstthe extreme claims made today on behalf of "intellectual property."What the law demands today is increasingly as silly as a sheriff arrestingan airplane for trespass. But the consequences of this silliness willbe much more profound.

The struggle that rages just now centers on two ideas: "piracy" and"property." My aim in this book's next two parts is to explore these twoideas.

My method is not the usual method of an academic. I don't want toplunge you into a complex argument, buttressed with references to obscureFrench theorists-however natural that is for the weird sort weacademics have become. Instead I begin in each part with a collectionof stories that set a context within which these apparently simple ideascan be more fully understood.

The two sections set up the core claim of this book: that while theInternet has indeed produced something fantastic and new, our government,pushed by big media to respond to this "something new," isdestroying something very old.Rather than understanding the changesthe Internet might permit, and rather than taking time to let "commonsense" resolve how best to respond, we are allowing those most threatenedby the changes to use their power to change the law-and moreimportantly, to use their power to change something fundamental aboutwho we have always been.

We allow this, I believe, not because it is right, and not because most of us really believe in these changes.We allow it because the interests most threatened are among the most powerful players in ourdepressingly compromised process of making law. This book is the story of one more consequence of this form of corruption-a consequence to which most of us remain oblivious.

--from Free Culture by Lawrence Lessig, Copyright © 2004 Lawrence Lessig, published by The Penguin Press, a member of Penguin Group (USA) Inc., all rights reserved, reprinted with permission from the publisher.