Professor Lawrence Lessig has been the most eloquent proponents of the Free Culture movement since its inception.  He argues that recent copyright laws abandon a tradition of free creative expression that has existed throughout American history and instead impose undue restrictions that have chilled the growth of culture, especially at this moment when digital technologies have enabled audiences to participate in making their culture unlike ever before.  Lessig was particularly outspoken about the failure of copyright to distinguish between commercial and non-commercial lifetimes of works, the latter of which is important and valuable for the development of culture. In this context, copyright does not fulfill its goal of promoting progress, but rather burdens free expression and does harm; access to culture is a value which the current market system and copyright regime have inhibited.

Although Lessig does not address fansubbing directly, his arguments about the value of access to non-commercial works can logically be extended to this domain.  Typically fansubbing groups only work on unlicensed series, which are only distributed in Japan and therefore unavailable to English audiences.  By prohibiting altogether the translation and reproduction of these works, copyright law is not incentivizing their legal distribution, but rather restricting cultural growth by indiscriminately denying American audiences any access to an entire medium of expression on the basis of preserving the rights-holder’s complete control over distribution even if they are not commercially exploiting the work.  In this case copyright has not balanced the interests between creators and the public, but rather established a view of creative works as absolute property rights that creators are entitled to perfectly control.  Neither the Constitutional basis nor the long history of copyright law supports such an interpretation, which has been shown to be deleterious to the purpose of expanding culture and promoting creativity.

In Chapter 5 of Lessig’s book, he presents both sides of the piracy argument, yet suggests that p2p sharing is unlike true piracy and that there is potential to create a way to protect artists and allow the sharing to survive. Lessig proposes that four types of sharing occur on p2p networks, only one of which is legal, though three of the four remain beneficial to society despite their technically infringing nature. Lessig posits that the benefits of these three non-harmful piracy methods may outweigh the harms of type A sharing, and cites numbers released by the RIAA itself to support his argument. In 2002, the RIAA reported that CD revenues had fallen 6.7 percent, falling from 882 million CDs sold to only 802 million. During this same time period, the RIAA estimated that 2.1 billion CDs were downloaded for free, about 2.6 times the number of CDs sold. However, Lessig points out that, if every download were a lost sale, then the industry would have had a 100 percent drop in sales, not the mere 6.7 percent drop reported. Based on this data, Lessig concludes that there is indeed a huge difference between downloading a song and stealing a CD, a fact the RIAA does not want students to know.

Lessig also criticizes the RIAA’s demand that Napster be able to filter out 100 percent of infringing content when Napster was only able to promise 99.4 percent. He suggests that the war is not on copyright infringement but on file-sharing itself, with copyright used as an excuse. Under the zero-tolerance policy demanded by the RIAA, we wouldn’t have VCRs, or Xerox machines, neither of which seem so harmful today. Lessig does not promote piracy, but suggests that its detractors allow the technology of the internet to develop before pouncing on the technology and preventing it from maturing to its potential. This means that the anti-piracy scare campaigns and pressure for swift legislation go by the wayside while the internet reaches its full potential and an efficient way to promote and distribute content is developed.

The argument of Eldred has broader implications in terms of the limits of Congress' power. The terms that are allowed to copyright holders are supposed to be limited, but as of now, Congress maintains the power to keep extending the term limits, essentially making the concept of "limited" an open ended deadline, not granting any security that copyrighted materials will ever end up in the public domain.

This concept has implications for the interception of free speech and copyright. Once copyright has served its function as a tool for spreading knowledge, Lessig argues that "copyright is not an engine of free expression. Copyright is a break (227)". The interception of copyright and free speech rights comes to a head again, if one indeed limits the rights of the other.

Lessig has the view that "the purpose of copyright is to enable the commercial market that spreads culture." This then implies that copyright law was created to protect the author only insomuch as it protects them within the commercial market that encourages the spreading of culture. This is an approach to understanding the balance between copyright law and the First Amendment.

    Beginning with Chapter One, we see Lessig's opinion forming quickly on the state of copyright law today. In his chapter on Creators, Lessig forms his main issues with the law, the first being that it hurts the development and flourishing of creative and artistic works that are based on derivative works. Second, the issue of how long copyrights last, and how that affects public domain, and subsequent uses.
    He starts out by discussing Walt Disney and how the character of Mickey Mouse had been inspired by the Buster Keaton film, "Steamboat Bill Jr." However, at the time, Lessig notes, this "borrowing" of characters was commonplace, and didn't result in much controversy. As Lessig points out, "these additions were built upon a base that was borrowed. Disney added to the work of others before him, creating something new out of something just barely old." Most importantly, Lessig states, "this is a kind of creativity. It is a creativity that we should remember and celebrate."  
    He briefly talks about how copyright law back then allowed for many more works to be considered part of the “public domain.” Because copyright extension didn’t last nearly as long as it does today, more works were able to be used freely, which Lessig views as an extremely positive thing. Getting permission of the copyright owner now is part of the reason why creativity has been stifled, as seen in post-modern art and music sampling.
    From here, Lessig turns his attention to the Japanese craze of Doujinshi, a kind of “copycat comic.” The process involves taking pre-existing Japanese comics and anime and “transforming it either subtly or significantly.” There are a number of different ways the second comic can change the first. Doujinshi is a huge phenomenon in the Japanese manga (comic) market, drawing more than 33,000 artists from the country. Lessig notes that despite Japanese copyright law that works very similar to US copyright law, Doujinshi is not only allowed to exists, but thrives. Lessig cites law professor Mehra who “hypothesizes that the manga market accepts these technical violations because they spur the manga market to be more wealthy and productive. Everyone would be worse off if doujinshi were banned, so the law does not ban doujinshi.”
    This response to borrowing and appropriation deeply impresses Lessig, and is key to my thesis. I will analyze why America responds in such a different manner, as well as the pros and cons of each response. This chapter is also crucial to my paper because it highlights how derivative works were dealt with in the past, how copyright extension has negatively effected creation, and how appropriation is dealt with in other cultures. I plan to discuss how American culture is both more litigious and greedy, which perhaps have resulted in such a “permission culture.”