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There was a very thought-provoking comment at the Lessig blog recently ... I can't do it justice, so I'll quote it:

Retorically this sounds fine, but I am not yet ready to buy the idea that hacking DVDs or the unrestricted sharing of music via p2p or otherwise “playing around cultural signs” is not largely about getting something without paying for it rather than looking for ways to solve problems like terrorism or environmental pollution. I can understand that positing this contrast seems a bit unfair, but my observation is that a lot of the most vocal “copyfight” thinkers use similar arguments about democracy to justify limiting commercial protection of IP. I guess I am grappling with finding where the “rubber meets the road.” Why is the fair use doctrine as it currently stands insufficient to allow critical, commentary or other expressive uses that enhance the debate re social and political issues. Also, what do you see as constituting a “full and fair examination and justification” to allow information to be given IP protection?

Strong stuff. How do we justify defending the get-something-for-nothing tools? What benefit to human expression, or to anyone, does it serve? And at what costs? I tried for an answer, which I reproduce (with modest edits) below:

I’ll try to hit Casey’s question, on the connection between cultural evolution and “locking” information, with a rather blunt example (I’m sure there are more elegant ones): Probably, many people have written essays and doctoral theses on Gone with the Wind focusing on the novel’s depiction of Reconstruction-era race relations, and how the author’s own era shaped that depiction. That’s great. Such analyses certainly should be written. That’s how our culture evolves with respect to important matters. The audience for most of those papers and journal articles, if there were any, has probably been pretty limited. I can say honestly that, although I have pretty diverse interests, I would never go looking for such an article, and if I found it I’m not sure that I would have the interest or patience to read it. Alice Randall expressed that analysis in a different manner: she made the same points, but she made them in the framework of “retelling” GWTW. Same characters, same incidents, wildly different perspectives. Randall’s genius wasn’t in merely observing that Mitchell’s work embodied a questionable and controversial view of history: it was in presenting that observation in an immediate, accessible manner, from which a reader could make those observations on her own. Now, the discussion has broadened to include those who aren’t full-time academics with subscriptions to The Journal of Historical and Cultural Socio-Economic Perceptivity (or something). The Wind Done Gone is the “picture” that’s worth a thousand essays. To your second question, on why fair use isn’t sufficient: I would point to the second part of the story, in which Randall’s publisher was bestowed with a generous lawsuit from Mitchell’s estate’s trustee. Lessig really nailed it in Free Culture: fair use only is the right to hire a lawyer. I would add that fair use is also the requirement that you only hire lawyers who will advise you not to criticize, if you don’t have permission — or can’t afford litigation — for your criticism. But you know, I’m kind of jaded about these things. If fair use case law were a bit more consistent, then many of my problems with it might evaporate. --matt

If I could add anything in retrospect, it would be that The Wind Done Gone was damn near entirely a new work of authorship. What it "borrowed" from its inspiration were themes, locations, characters, and some selective quotation. (Of those, I believe that only the last one should survive an idea-expression test. But I'm pretty much alone on that one.)

The process of writing a book may be analogized to editing movie & television clips into a similar transformative criticism. (I'm thinking of things like juxtoposing "The West Wing" with footage actual White House press conferences.) Only, movies and TV have digital locks built into them. The "hacker tool" that enables unlimited P2P distribution is the same tool that enables the electronic Wind Done Gone. If you ban the tool for hackers, you ban it for everybody.

That ain't right.