Increased Significance of Balkin's "Democratic Culture"

While Lessig’s discussion of the expansion of copyright law in “Free Culture” is convincing to some extent, I would be interested to see exactly why he thinks that this trend is so dangerous. (He may well lay out this reasoning elsewhere in the book, but it seemed conspicuously absent in the assigned reading.) My assumption is that he would come down on the side of Balkin’s “democratic culture” theory, that the notion of free speech applies to the expression of non-political ideas just as much as politically-significant speech. If Lessig can show that the mere creation, transformation, alteration, and manipulation of cultural elements, even those that aren’t remotely political, is fundamental to the democratic ideal of free speech, then his cautionary tale of the dangers of overly broad copyright law is all the more convincing. However, if he is unable to make this point, then his argument suffers greatly. After all, if meaningful freedom of speech remains largely unaffected by copyright expansion, it is not altogether as catastrophic as Lessig suggests if copyright law infringes on previously unaffected means of expression. While I personally side with Balkin, especially in an age when the creation and modification of popular culture is more integral to the formation of an identity than ever before, it seems that this is no small point of contention, a point the “copyright warriors” would not likely concede uncontested. After all, claims of free speech violations are superficially more compelling if they are politically significance than if they seem somewhat trivial. (Few would argue that the hip-hop example is as significant as the “Mien Kampf translation” anecdote in “Copyright’s Paradox”). This is probably due to the ever-salient American emphasis on protecting expressions of political dissent. Nevertheless, those fighting for the protection of free speech would do well to keep this bias at the front of their mind.

Question of the Week: Does Golan v. Gonzales’ reliance on the “traditional contours of copyright law” spell trouble for future attempts to combat aspects of the DMCA as unconstitutional, as Balkin suggests it may?