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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

« ILAW Field Notes | Main | Talking About an Evolution »

May 14, 2004

Lessig on Free Culture, Squared

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Frank Field has the closest-to-verbatim transcript of Larry Lessig's talk on "Free Culture" here @ ILAW; click on the "Continue reading..." below for my rough running notes.

An especially intriguing exchange, from the Q&A session with Charlie Nesson as moderator:


Nesson: You recognize that Terry's solution [compulsory licensing] depends on trust of the government. The same people who have bloated copyright almost beyond repair. In effect you conclude that's not the solution. Let's say an alternative compensation solution won't work. What's your solution now?

Larry: We're in the middle of a transition in the way people get access to content. The natural way now is to hoard. If the FCC doesn't screw it up, we could imagine that people in the future are persisently, ubiquitously connected. People would no longer need to be database managers. In that world the incentive to hoard goes away. Structure of access changes dramatically.

For political reasons I suggest a modification of Terry's proposal. Slightly higher chance the recording industry would be willing to take a step if they think it's part of a transition period. Here's the formula: set up an economic counsel to calculate loss. Write them a check, in exchange for giving up B-flag and DRM. We pay them off for ten years. Then see what's changed.

Nesson: But we're here, we're now. You have a series of critiques. If you had the opportunity, which of the threads should we pull back on to deal w/preserving the rule of law?

Larry: Small changes w/significant effect. Bill we proposed after Eldred case, for example: the Public Domain Enhancement Act. [...]

We also need to show Congress more people who are engaging in positive uses of work. Go out to schools and encourage extraordinarily creative work. Have a show for parents and ask the lawyers to give a critique.

Nesson: That's not funny. [Big laugh.]

Larry: Parents will look at this creativity and be amazed. Then have the lawyers go through and list the violations. By the end people would revolt.

Our problem is that when people think about copyright, they think about ripping off Britney Spears. They don't think about this. That's the challenge.

Larry: Charlie asked Yochai whether he supported the copyright clause -- the proper response would have been, "There is no copyright clause. There is a progress clause."

Let's discuss what we mean by "progress. " Advancement. Spreading. The two core ideas of progress. Does the Constitution mean "advancing" or "spreading"? Both. That's what the progress clause is about.

Law & tech can both benefit and burden progress. Law benefits progress when it grants copyright. But unfortunately, law burdens it today. I agree w/Terry. Copyright law is broken.

Libraries are little cells of piracy -- this is the way we spread knowledge. Promote progress by making this available for free. For most of our history, this way of spreading knowledge was burdened. Libraries were expensive to build and run. You had to spend a great deal of resources; tech was the enemy for much of the history.

Law regulates copies. Unregulated uses in pre-digital age did not produce a copy. This wasn't "fair use"; it was unregulated use. Now, publishing a book is a regulated use. We in the U.S. have a very small slice of "fair uses." But libraries were built upon this tiny freedom. Library uses are "free."

Tech was a heavy constraint then; law was light.

Walt Disney gave us Mickey Mouse -- "Steamboat Willie." As everyone recognizes now, there was a great creator at that time: Buster Keaton. He gave us Mickey.

Now we have "Walt Disney" creativity -- "Treasure Island" is the modern example. It used to be expensive to be a cartoonist; tech still a burden. But law still light. We had a tradition that protected a rich public domain. Until 1978 the average term of copyright was never more than 32 years. This produced great opportunity to build works on top -- it was a free -- or sane -- culture.

Now we enter the digital age. The world is radically different. Tech could now radically reduce the costs of progress. [...] We have the potential now for huge progress. We could for the first time build the Library of Alexandria without having to travel through the dessert to get there."

This is Walt Disney creativity squared [plays Outkast's "Hey Yah" mixed w/Charlie Browin; the Daily Show w/George Bush debating Governor Bush. DJ Danger Mouse's Grey Album. The famed duet between Bush and Tony Blair.]

This is creativity enabled by digital technology. This will fundamentally alter our democratic potential -- and it's empowered by technology. The costs are small. Changes the way culture gets made or remade. Affects freedom/power to speak. Not broadcast democracy; a bottom-up democracy. This is the potential of this tech -- to advance and spread in the sense of progress. This is enormous.

If the law allows it.

We're in the middle of this war: the copyright war. There is a war being waged against these technologies. One way of doing business is to kill these technologies. They employ lobbyists to convince Congress that we need to defend traditional values from this tech. But the idea that copyright hasn't changed is bull****.

Copyright term: then it was 14 years, now 95.
Renewal: used to be a renewal requirement, average term of 30 years or so -- now the average term is the maximum term.
Scope: we used to have formalities -- no more. We had a conditional regime -- you got the copyright if you asked. You don't have to ask anymore.

Difference from the past is large -- and it's *totally missed* in the debate.

Before 1976, the vast majority of published work was free for re-use. Before the Internet, people/law regulated copyrighted works.

Marx Brothers v. Warner Brothers -- this battle only mattered if a judge gave it credence. Now this is governed largely by code. [Reads TOS for a public domain e-book.]

Where does this control come from? Technology is used to restrict use more extensively than ever before.

Sony Aibo pet story: coders "hack" it -- teaching the dog to dance jazz. People paid $1500 for this dog. Sony sends a DMCA take-down letter -- even though the uses are legal, the tech is blindly protected by law. No nuance.

Everything we do with a digital work involves producing a copy -- this is a profound change. What was presumptively unregulated now is presumptively regulated.

Conclusion that cannot be denied: we have never before lived in a time when fewer people have more control over the production of culture.

Challenges:
*get permssion -- who owns this? Ity's been sucked into black hole of legal regulation.

Lawyers' response to Bush/Blair: "It's not funny." An ask-me first before you can speak culture.

"Uncovered" is a documentary about the Iraq war; testimony by CIA agents, etc. Robert Greenwald was supposed to come out with the DVD and wanted to include one-minute clip of Bush interview on "Meet the Press," giving his reason why we went into war.

The answer: "No. We don't think this makes the President look very good."

This speaker wants to use the President's own words to critique him. No way. We will sue you into oblivion.

[...]

In my view, the law shouldn't restrict my right to speak freely without justification. Where *is* the justification for this? The radicals here are those who have created this massive change -- we were a free culture, we are increasingly a permission culture.

For what? Why? For *what* are we giving up democratic speech, actually alive?

Collateral damage in the copyright war. Charlie last year @ ILAW gave a moving speech about what it means to be a professor in the midst of this war that turns our children into criminals. They sue 12 year-olds and we just *give up* on the law.

Pepsi thought it would be really cool to "capitalize" on the war. [Plays iTunes/Pepsi ad; then the rebuttal @ Whatacrappypresent.com.]

Extremism begets extremism. People will begin to understand "rule of law" as "unjust rule." People every day will engage in criminal acts.

Wars of prohibition do not win. Let's wage peace here. Let's make it so that 60 million people *aren't* engaging in illegal behavior. We could do this. Yet the recording industry is resisting. Terry and others have mapped out how to do it. I ask: *why not*?

A ray of hope: we could respond to the technology the way Disney taught. [Shows goat in "Steamboat Willie"; goat ate the music.]

Okay, so the goat is the Internet. The recording industry says the goat has eaten the music. Response is "kill the goat." But what does Disney say? Mickey winds up the goat and the goat sings. In this destruction is an opportunity.

Pessimism: I testified Wednesday about HR 107 (DMCRA). It says tech can't block non-infringing uses. Seems a totally obvious, simple point. Insane amount of ignorance inside Congress. Q: What fair use means. Can I back up my DVD. No. I say, "Hey wait -- this isn't the issue. Whatever fair use is, isn't part of this bill!" I was lectured at with a kind of IP McArthyism -- "copyright is the same thing as dirt." No difference. It's property. I responded, "You're right. Copyright is a form of property. That's irrelevant." All Congress could focus on was that property is important, we must protect it. They just didn't get it.

The pressing question is not whether Terry's plan will be passed, but whether it will ever actually be understood.

Charlie: Larry is the author of "Free Culture." I recommend it without reservation: contains the story of copyright -- many stories. Many of his own stories, in fact. Larry is an extremely significant actor in changing the sensibility of this country toward copyright. Larry, you surprised people by how moderate this book is.

[Reads from the book: "Anarchy is not what I advance here."]

You wouldn't stand for peer-to-peer to destroy copyright, right?

Larry: I support an alternative.

["Law should stop it. This piracy is wrong."]

Larry: Absolutely.

["We should try to gauge harm before the law should limit."]

Larry: Valenti said, here in this very room, "Within ten seconds, six billion people have a copy of this movie." Not true. Let's find a way to balance it. Let's not spray DDT into the environment to kill a gnat.

Nesson: You recognize that Terry's solution depends on trust of the government. The same people who have bloated copyright almost beyond repair. In effect you conclude that's not the solution. Let's say an alternative compensation solution won't work. What's your solution now?

Larry: We're in the middle of a transition in the way people get access to content. The natural way now is to hoard. If the FCC doesn't screw it up, we could imagine that people in the future are persisently, ubiquitously connected. People would no longer need to be database managers. In that world the incentive to hoard goes away. Structure of access changes dramatically.

For political reasons I suggest a modification of Terry's proposal. Slightly higher chance they would be willing to take a step if they think it's part of a transition period. Here's the formula: set up an economic counsel to calculate loss. Write them a check, in exchange for giving up B-flag and DRM. We pay them off for ten years.

Nesson: But we're here, we're now. You have a series of critiques. If you had the opportunity, which of the threads should we pull back on to deal w/the law?

Larry: Small changes w/significant effect. Bill we proposed after Eldred case, for example: the Public Domain Enhancement Act. [...] Also need to show Congress more people who are engaging in positive uses of work. Go out to schools and encourage extraordinarily creative work. Ask the lawyers to critique.

Nesson: That's not funny. [Big laugh.]

Larry: Parents will look at this creativity and be amazed. Then have the lawyers go through and list the violations. By the end people would revolt.

Our problem is that when people think about copyright, they think about ripping off Britney Spears. They don't think about this. That's the challenge.

Q: Are you suggesting that we change copyright to mimic trademark law?

Larry: In some senses, yes -- more like patent and trademark. A system for recording rights. One of the arguments against my bill is that the $1 would burden poor copyright owners. People said, people don't argue that do they? Yes, they do.

Q: One of the things that's been going on as recording industry has been fighting w/copyright is to turn to contract law. Licensing models protected by DRM and DMCA. Will you address the impact of that?

Larry: Very important problem. Only very terrible if those get encoded into the technology. Right legal response is to deny force of contract. [...]
GNU GPL tells you what to do -- is this a contract? FSF say, "It doesn't matter." We care about it as a copyright license. This is the same model CC adopts. [...]

Q: What is the role of constitutional values when we talk about free vs. permission culture?

Nesson: If you could articulate something puzzling -- why is the government so impervious to the First Amendment value?

Larry: I fought Eldred because I thought some justices would interpet according to the meaning of the progress clause. [...]

The court will never restrict Congress's power, they said. But I thought they were interested in originalist interpretation. I was wrong. When I heard the court's response, I thought, "You don't have to teach law students every year that law isn't about law and not politics." These conservative justices didn't even address the issues. Why? [...] This court developed another constution for copyright. There was a collage of "idea" people wrote briefs for us; on the other side, all the media companies in the world. The court won't question the companies in favor of the "idea" people .

[...]

[Someone] asked: "When is the last time the Court voted against all the money in the world?" I responded, "That's not how constitutional law works." But this is a hard Q to answer. Court must recognize if these values are salient to the public again. If the people get it, the court will get it.

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