Freshman Reading: Creativity in the Digital Age

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In 2002, Jesse Jordan, a freshman at the Rensselaer Polytechnic Institute (RPI), engaged in what he believed to be a harmless act of creativity. It would end up costing him his life savings. Jordan addressed a flaw in RPI’s intra-university search engine to help other students avoid computer crashes when attempting to access files from offline computers. Students, both friends and strangers to Jordan, shared files using this search engine, and only about one-quarter of those files were music. He did nothing to encourage the students to share anything, nor did he create or profit from the search engine. He was just an inquisitive kid tinkering with technology, a quality that had helped him earn admission to the prestigious technological school. However, once the Recording Industry Association of America (RIAA) caught wind of this tiny cyberspace community, they filed a $15 million dollar lawsuit against Jordan, claiming that, as the operator, he was a “pirate” who “willfully violated copyright laws.” The RIAA agreed to take Jordan’s life savings of $12,000 as a mitigating settlement. “The cost of fighting a lawsuit like this, Jordan was told, would be at least $250,000,” writes Lawrence Lessig C’83 W’83. “If he won, he would have a piece of paper saying that he had won, and a piece of paper saying he and his family were bankrupt.”

This chilling story comes from Lessig’s 2004 book Free Culture: The Nature and Future of Creativity, this year’s selection for the Penn Reading Project (PRP). For the past 16 years, the PRP has united incoming freshmen in the analysis and faculty-moderated discussion of a text. Lessig plans to visit Penn’s campus during New Student Orientation week, when the PRP takes place. A Stanford law professor who has been featured in theGazette for his work in applying Constitutional law to the realm of cyberspace (“Constitutionalist in Cyberspace,” Nov/Dec 1998), Lessig is one of the innovators behind the Creative Commons license, a system that supports a more altruistic stance on copyright protection. In Free Culture, he cites specific instances—like Jordan’s—where creativity has been compromised for the sake of propriety or, conversely, where the foresight of judges has encouraged technological revolutions. He claims that the digital age will further blur the lines of what should be protected by copyright, questions the legitimacy of current copyright term limits, and offers solutions to the problem of maintaining proprietary rights while allowing others to tinker with a product in the spirit of innovation. Gazette writer Carter Johns C’07 recently conducted an e-mail interview with Lessig to discuss some of the issues raised by his book.

What do you feel is wrong with our current copyright policies?

They were written for a different world. The technology that copyright law had in mind is not our technology today. We need to update the law to be relevant to our current technologies. For example digital technologies: copyright law regulates “copies” of original works. Copies are as common as breathing to digital technologies.

Your book suggests that special interests are responsible for the extension of copyright term limits and intellectual property protections. Is this a necessary or inevitable result of a capitalist system and commercialized art? How can the system be changed to ensure that artists are not starving because their copyrights expire before they can profit from their work?

I don’t think it is inevitable, but it is when there are no effective constitutional limits on what Congress can do. One simple limit, for example, would be that Congress not be able to extend an existing copyright. That would eliminate the incentive for existing copyright holders to lobby to extend copyright terms. Now of course, it is critical that copyright be long enough to assure that “artists are not starving because their copyrights expire.” But as the current term is life plus 70 years, there’s little risk of that!

What is your stance on the case of Jesse Jordan?

There’s no reason for the “damages” for this sort of behavior to be as high as they are. The high damages make it irrational to fight. That means corporate interests get their results without the issue ever being properly tested. And it should be much easier to recover fees for abuse.

Since your book questions the validity of the evolution of legal copyright protection, what has been the reception of your book within your professional circle? Have you found many lawyers supportive or dismissive of your claims and suggestions?

It depends on who writes their paychecks.

What is your definition of “fair-use”? Where do you draw the line between fair-use sharing of files or property, and illegal piracy distribution?

It can’t be defined, as it is inherently uncertain. But the clear examples would be fair RE-use—building upon others’ creative work, especially in a noncommercial context. For example, imagine you see a film and you remix the trailer to make critical commentary about the film, and share it freely with your friends on MySpace (a popular online based community). Such an application should plainly be fair use.

Can you provide a brief explanation of the Creative Commons license and your motivation in creating it? What kind of protections or advantages do they offer the artist as opposed to a standard copyright?

Creative Commons gives creators the ability to mark their creativity with the freedom they intend it to carry. Those freedoms are determined from three choices—whether to allow commercial use, whether to allow modifications of the work, and whether, if modifications are allowed, the modification must be released under similarly free terms. The protections are the same as copyright law—violate the license, violate the copyright. And CC licenses make sense depending upon what the aim of the creator is. Many artists and creators want something more than perfect control of their creativity.

What lessons would you like the Penn freshmen who will be reading your book to come away with?

The will to question what everyone else says is right.

Free Culture is available for non-commercial use under a Creative Commons license at To learn more about the Creative Commons license, visit the website at

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