Larry Lessig On How To Save Remix Culture
from the good-luck-with-that dept
Larry Lessig has a fantastic op-ed essay in the Wall Street Journal that tries to defend "remix culture" from draconian copyright laws that have made it illegal to build new creative works on the works of others. Not surprisingly, he makes some important points:This war must end. It is time we recognize that we can't kill this creativity. We can only criminalize it. We can't stop our kids from using these tools to create, or make them passive. We can only drive it underground, or make them "pirates." And the question we as a society must focus on is whether this is any good. Our kids live in an age of prohibition, where more and more of what seems to them to be ordinary behavior is against the law. They recognize it as against the law. They see themselves as "criminals." They begin to get used to the idea.It's definitely worth reading, and then considering the five suggestions he puts forth for how copyright can be fixed, though I disagree with him on whether or not his suggestions would actually work. I think they would significantly improve things from the way they are today, but Lessig still seems to think that there's a way to "thread the needle" by distinguishing between commercial works and non-commercial works. The more I look, the less possible I think it is to distinguish between the two in any meaningful way.
That recognition is corrosive. It is corrupting of the very idea of the rule of law. And when we reckon the cost of this corruption, any losses of the content industry pale in comparison.
Copyright law must be changed.
Furthermore, Lessig's solutions are focused very much on trying to "balance" the rights of amateur creative types with professional creative types. However, I think if you look at the economics and historical record, there's no need to create "balance." If content creators started adapting new business models, both can succeed tremendously, without having to worry about any kind of balance. A true solution suits both sides perfectly, benefiting both, without either side having to "balance" with the other.
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Filed Under: copyright, culture, larry lessig, remix
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Lessig
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Part of me wants to call that simplistic and condescending, yet it has a chilling ring of truth. Hell, the big record labels are Demanding Money With Menaces -a specific and quite serious criminal offence in this country- every damn day; why should I feel guilty about grabbing a bunch of their products from the shelves in HMV, shoving them under my coat and running, or doing something even more idiotic? I haven't because I know the difference between civil disobedience and lawlessness and refuse to cross the line over to the latter, but not everyone is that smart. Throw in the current hypersensitivity to anything that might look vaguely like terrorism if you squint and have some would-be warrior for the Internet Revolution let off a stink-bomb in the RIAA's offices, and...
Well, I don't know about you, but my imagination just kind of shuts down before I get much further along this train of thought.
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So, now I'm a thief because:
I view ads on TV daily, for which I don't pay a dime for yet are also copyright.
Listening to music posted in the store as I walk around.
Reading a novel sent to me by a friend, again a copyright I've not paid for.
Watching copyright previews of a DVD I've purchased, now thinking the price jack is due to these previews.
Sampling music online.
You know, this whole copyright fiasco can kiss my ass. Screw these companies and screw those like YouTube who won't defend common sense.
Now, if you'll excuse me, I'm going to go turn myself in since it's clearly evident I, and everyone else, is breaking the "law".
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Re: So, now I'm a thief because:
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Re: So, now I'm a thief because:
Sing 'happy birthday' in a restaurant and technically you owe someone royalties.
Play the radio in your office and your business could get finned by the copyright police.
The inconsistencies around copyright are absurd, and change depending on what media industry your looking at.
Matt Mason put together a great book on the history of remix culture and its influence on capitalism in 'The Pirates Dilemma'. Well worth a read; http://thepiratesdilemma.com/
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creative commons
I'm not convinced that changing the law is what is required. I think backing artists that embrace new models of distribution and licensing will have more impact.
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Why is it impossible to distinguish?
I see the distinction as very useful. Take a book, for example. There is a big difference between an individual downloading my work to enjoy it and a third-party publisher printing it and undercutting my own publisher. The first is the free dissemination of information - good. The second is greed and profiting from another's work without reward to the creator - bad. How is the creator to build a business model if all uses of his work can be ripped off by another company with no way for him to fight back?
From your linked article, it seems that you will not be happy until ALL rights for the creator are stripped away. You're wrong. There is a happy medium.
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Re: Why is it impossible to distinguish?
Sure. Let me just give you some scenarios that I think would eventually end up in court if you tried to establish a distinction:
* You write a book that you say is free for noncommercial use to send around on the internet. I put it on my website to help promote you. On that website, I also have some ads.
Commercial use? Or Personal use?
* You write a song that you give away for free for noncommercial use, and encourage others to make remixes of it for noncommercial use. I make a new song built on your song and also give it away for free. MY version of the song becomes super popular, and I suddenly become a popular musician making lots of money at concerts.
Commercial use? Or Personal use?
* You write a blog, and you tell people that they're free to make use of all the content for non-commercial use. I read your blog, and it gives me some info that I use to get a customer or buy some stock that goes up.
Commercial use? Or Personal use?
The point is that almost anything these days can be a bit of both, and even if you're doing something for personal use, it can quite often lead to make some money either directly or indirectly.
I see the distinction as very useful. Take a book, for example. There is a big difference between an individual downloading my work to enjoy it and a third-party publisher printing it and undercutting my own publisher. The first is the free dissemination of information - good. The second is greed and profiting from another's work without reward to the creator - bad. How is the creator to build a business model if all uses of his work can be ripped off by another company with no way for him to fight back?
The problem is that you think there's no way to fight back. There is. It's all about setting up the right business models, where any of the free use actually helps your business model.
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Re: Re: Why is it impossible to distinguish?
As for not being able to distinguish between commercial and non-commercial use, it's really not that difficult. The current law, properly applied, can handle this, and some common-sense, and generally minor, changes in copyright law would make the situation even clearer.
You write a book that you say is free for noncommercial use to send around on the internet. I put it on my website to help promote you. On that website, I also have some ads.
Commercial use? Or Personal use?
Possibly a gray area, but if you're making money using someone else's work, it's commercial. Contact me, and I'd likely not object if you're also linking to Amazon to encourage sales.
You write a song that you give away for free for noncommercial use, and encourage others to make remixes of it for noncommercial use. I make a new song built on your song and also give it away for free. MY version of the song becomes super popular, and I suddenly become a popular musician making lots of money at concerts.
Commercial use? Or Personal use?
If you're performing live using parts of my song, it's commercial, and you'd probably owe me some coinage under the public performance compulsory license. Happens all the time. Your earlier use would be non-commercial.
You write a blog, and you tell people that they're free to make use of all the content for non-commercial use. I read your blog, and it gives me some info that I use to get a customer or buy some stock that goes up.
Commercial use? Or Personal use?
Not only non-commercial, but not even covered under copyright. If you get info from something I write and use it, in another context, to convince people to buy stock, it's not even covered under current copyright law.
The point is that almost anything these days can be a bit of both, and even if you're doing something for personal use, it can quite often lead to make some money either directly or indirectly.
If you're making money directly from the reproduction of my content, why shouldn't you share some of the coin?
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Re: Re: Re: Why is it impossible to distinguish?
By the way, the fact that a distinction would be litigated in court does not make it an unworkable standard.
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Re: Re: Re: Re: Why is it impossible to distinguish?
"By the way, the fact that a distinction would be litigated in court does not make it an unworkable standard."
No but in his own words there would be 'gray areas' and those tend to be abused by one side or the other. There are already Way to many 'gray areas' in the current law. Like Fair Use. Bet you can't explain that clearly and concisely in one post.
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Re: Re: Re: Re: Re: Why is it impossible to distinguish?
There will always be gray areas, and even a black-and-white law can be open to abuse. 'twas ever thus and always will be.
As for fair use, it's employed constantly--every day--and is very rarely litigated. Very generally, fair use is the reproduction, or quoting, of someone else's work for the purposes of review, discussion, education, news-reporting, or other commercial or noncommercial uses. In more colloquial terms, I'd put it "take what you need to make your point, no more."
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Re: Re: Re: Re: Why is it impossible to distinguish?
I'd argue that his "distinctions" were wrong -- and so will plenty of other people. That's the problem. These will all end up in court.
By the way, the fact that a distinction would be litigated in court does not make it an unworkable standard.
Says the lawyer, no surprise. I would suggest that plenty of people might disagree on this. The fact that the boundaries are NOT clear is a HUGE problem in terms of economic waste. We already have that problem in the patent space (see Bessen and Meurer to understand why). Extending that to copyright is hardly a solution. It's a recipe for disaster and wasteful spending that destroys economic growth.
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Re: Re: Re: Re: Re: Why is it impossible to distinguish?
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Re: Re: Re: Re: Re: Why is it impossible to distinguish?
Who are these "plenty of other people?"
Says the lawyer, no surprise. I would suggest that plenty of people might disagree on this. The fact that the boundaries are NOT clear is a HUGE problem in terms of economic waste. We already have that problem in the patent space (see Bessen and Meurer to understand why). Extending that to copyright is hardly a solution. It's a recipe for disaster and wasteful spending that destroys economic growth.
While bright lines may be easy to follow, often times bright-line rules can be overly simplistic and can lead to harsh and unjust results. So while you may harp on economic waste, others may be more concerned with fairness to the creators, such as Lessig.
So what's more important: fairness or administrative convenience? I suppose it depends on the instance.
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Re: Re: Re: Re: Re: Re: Why is it impossible to distinguish?
Spoken like a true Lawyer would. I would say that common sense trumps both. There should be clear outlines to the law. Not the Gray areas to be battled out in an expensive lawsuit. But I know where you stand on the issue, since most of that expense would funnel into your pocket. Good Luck Willton.
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Re: Re: Re: Re: Re: Why is it impossible to distinguish?
Distinctions between commercial and noncommercial activity are not that difficult and are made regularly without much problem. Your disdain for lawyers notwithstanding, not all law (or all lawyers) are evil or just out to screw you out of a buck.
And the issue is not "extending" any part of the "patent space" to copyright, quite the opposite. Lessig's proposals are about easing restrictions on copyright and re-use.
You keep bringing up economic waste and economic growth, when Lessig's proposals are about freeing up noncommercial use of content to the widest possible degree. You seem to focus only on the commercial use, and greatly favor re-users over original creators. Are the economic concerns of content creators to be ignored?
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Re: Re: Re: Why is it impossible to distinguish?
The only people it would work well for are lawyers who would be litigating over this stuff for years -- and the lobbyists who would include plenty of loopholes to protect their clients' businesses.
Possibly a gray area, but if you're making money using someone else's work, it's commercial. Contact me, and I'd likely not object if you're also linking to Amazon to encourage sales.
Really? So if there are ads on a site it's commercial work? Many bloggers have Google AdSense on their personal blogs, and even if they make some cash they don't consider it to be a commercial effort.
But now you're going to be demanding a piece. And if they promote a few books on the site, and all those books demand a cut, suddenly it's not worth it to manage that, and the bloggers won't even bother.
If you're performing live using parts of my song, it's commercial, and you'd probably owe me some coinage under the public performance compulsory license. Happens all the time. Your earlier use would be non-commercial.
I didn't say you performed that song. But its fame resulted in you recording and performing other songs. How is that not commercial use?
Not only non-commercial, but not even covered under copyright. If you get info from something I write and use it, in another context, to convince people to buy stock, it's not even covered under current copyright law.
There will certainly be lawyers who disagree with you.
But, let me clarify even more. You write a blog that you say is free for non-commercial use to republish. Bob writes a blog aggregator that people use to subscribe to your blog. That makes "copies" of your blog posts via RSS. I subscribe to your blog, as it helps me at my job, and it helps me to make money.
Commercial use? Copies are being made, and I'm making money from your content.
And what about Bob? What if he sells his aggregator for millions. He was making copes of your blog and made tons of money. Commercial use? Non-commercial use?
It's not clear at all. The line is more than gray and the resulting lawsuits would be a huge mess.
If you're making money directly from the reproduction of my content, why shouldn't you share some of the coin?
Because that actually shrinks the economic incentives. If I can't make a business decision without having to pay you a cut, you've now decreased my margins and increased my cost of doing business. That actually makes your content less valuable. You're shrinking the economic pie.
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Re: Re: Re: Re: Why is it impossible to distinguish?
For a less cynical approach, it is possible to craft good law that will ease copyright restrictions, promote more fair use, and close loopholes. And it would be far more possible to do this than to convince the entertainment industry to just change their business models and give away content. Copyright is not going away and the entertainment industry as a whole is not going to change the way they do business without a long, protracted fight. Revising copyright law stands the best chance at moving toward the world you envision where sharing and re-use of content is allowed and encouraged.
Really? So if there are ads on a site it's commercial work? Many bloggers have Google AdSense on their personal blogs, and even if they make some cash they don't consider it to be a commercial effort.
No, it's not a "commercial work", it's a commercial use of a copyrighted work. As for blogging being a commercial effort, tax law already provides a good guide: if income from the activity is below a certain threshold, it's considered a hobby, even if you make money from it. In the strictest sense, if you're making money from an activity and intend to make money from an activity, it's commercial.
But now you're going to be demanding a piece. And if they promote a few books on the site, and all those books demand a cut, suddenly it's not worth it to manage that, and the bloggers won't even bother.
If all you're doing is promoting books, not an issue under the idea Lessig puts forward. If you're "promoting" books by posting copies of them in whole or in substantial part and you're making money off them, why shouldn't the original authors be remunerated? Just because it might be inconvenient?
I didn't say you performed that song. But its fame resulted in you recording and performing other songs. How is that not commercial use?
I didn't say you said I performed the song. I was just using your example: "I make a new song built on your song and also give it away for free. MY version of the song becomes super popular, and I suddenly become a popular musician making lots of money at concerts.
This happens all the time already, and generally isn't a problem. If you're using substantial part of the music or lyrics that I wrote, you'd owe a payment to ASCAP. Of course it's a commercial use.
There will certainly be lawyers who disagree with you.
There will always be disagreeable lawyers, but copyright law is already pretty clear on this example. If you use the information from something I write to make money, it's not a copyright issue. If you copy my work and sell it without my permission, that's a different story.
But, let me clarify even more. You write a blog that you say is free for non-commercial use to republish. Bob writes a blog aggregator that people use to subscribe to your blog. That makes "copies" of your blog posts via RSS. I subscribe to your blog, as it helps me at my job, and it helps me to make money. Commercial use? Copies are being made, and I'm making money from your content.
All of the uses (or copying of the work) you describe are perfectly okay under a noncommercial use license (such as the CC license already being used today) or under a revised copyright law that permits all noncommercial use. If you make money after reading my blog, good for you. You're not making money off of the copies, so it's not a copyright issue.
It seems that you aren't distinguishing between copying of my specific content (which is subject to copyright) and using the ideas expressed in my content (which is already not subject to copyright).
And what about Bob? What if he sells his aggregator for millions. He was making copes of your blog and made tons of money. Commercial use? Non-commercial use?
Depends on what Bob is selling. If he's selling his aggregator software or even his website, it's not a problem. Good for him. If he's selling my copies of my content, it would be a non-allowed commercial use and he'd have to remove my content or pay me.
It's not clear at all. The line is more than gray and the resulting lawsuits would be a huge mess.
Actually, it's pretty clear. And a properly crafted law would make it more clear.
"If you're making money directly from the reproduction of my content, why shouldn't you share some of the coin?" Because that actually shrinks the economic incentives. If I can't make a business decision without having to pay you a cut, you've now decreased my margins and increased my cost of doing business. That actually makes your content less valuable. You're shrinking the economic pie.
There are all sorts of costs to doing business, any business. You can make any business decision you want, but if you're re-using or directly selling copies of my content for your profit, why shouldn't you pay me just like you would any other supplier? By not paying me for your profiting on my content, you're shrinking my economic pie and shrinking my economic incentive. Why is your incentive and profit more important than mine? Frankly if you can't run a business without being able to manage and make judgments about acceptable margin and costs, perhaps you shouldn't be in business.
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Unfounded assertion alert!
While I sympathize with the assessment, this sounds awfully like the typical generation gap argument... complaining about how things are more different than ever before.
Personally, I don't see how you can't say that kids have more freedom than ever before. Until about 100 years ago, most children spent their time in school or in support of the family (farming, etc).
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Re: Unfounded assertion alert!
Then all the sudden you can "rip" a whole CD onto your computer! This is great! Now you can share the whole thing and make bigger "mix playlists" than you could fit on a CD. It was amazing!
Then a few years later, Napster starts picking up and gets sued to hell and back.
Now it is Wrong to share music. What I was taught as a kid as a morally good thing overall, is being taught to kids as being against the law and a Bad Thing.
Oh, and don't compare kids today with kids 100 years ago. Compare them with kids 30 years ago, 20 years ago. Those kids were just as free as these kids, except they could make mixed tapes.
You also are glossing over the main point Lessig was making. The kids are getting used to "breaking the law." Couple that with a popular culture that is glamorizing gang warfare and organized crime and you really do have a cause for concern, though more I think because the American prison system is such a mess.
Anyways, its food for thought.
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Big Problem
This has always been the major underlying effect of the drug wars as well. They have very little effect on the actual demand or supply of drugs, but they do help younger citizens form a healthy distrust of government and a less healthy disrespect for law.
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And on the bright side at least someone is making suggestions. Someone else is getting more vocal. Change takes time, and this is building momentum.
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The law, when properly operating, protects me from deviants with broken or missing senses of ethics. Since I am an ethically upright person, the law should have nothing to do with me. But yet it stifles me! The law is malfunctioning, and if you blame me instead for being mistaken and actually being unethical for being a pirate, then you are on what is eventually going to be the badly losing side of the ethical debate.
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Good v Perfect
Secondly, I think allowing markets to decide these issues, unregulated by any laws at all, is also a bad idea. We've just had a global example of why markets left to themselves don't work ... greed is too powerful a force to go unchecked.
Right now, of course, greed has the law on its side (thanks to the major corps), but it doesn't have to be that way. Law should help bring balanced regulation. That's Lessig main argument, and that argument is the most reasonable, balance, and likely-to-see-reality argument that I've come across.
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Response remix captures my views on copyright debate
#6 - Yes, there are few options stronger than "putting my money where my mouth is." If CopyRight crimps my style and I can't stand it, I'll go CopyLeft. In truth, there are material of CopyRight that I just can't live without; so, I go ahead, pay and obey the rules.
#7 - Of course, there is a happy medium. How? Why? See #6. I will indulge the creativity and plunderous predilections of the pampered generation - if only to spark new ideas that, perhaps, may even save us. But if a content creator doesn't feel like joining the party, I'm not about to drag them in.
#8 - Kids, and certainly everyone, have more freedom and even more empowered now that at any time in history. See walls being forced down, and institutions shaking at their foundations. But this only increases the tension because the power structure is threatened. Strong protest against any mod on CopyRight is coming from those threatened (perhaps because of fear of losing dominance if they embrace the new order). Of coure, we've heard similar protest from content creators themselves although with much more openness and flexibility - in other words, more realistic in their protection demands.
Finally, a Lessig trivia: LL's anti-DRM book was recently released in digital form with - surprise! - DRM. (see #6).
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Nice try, Lessig
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Balance
Essentially, Mike, you're saying "If content creators would just do as I say regarding business models, we'd all get a pony!"
While your model of free "infinite" goods and profitable "scare" goods may indeed work for some companies, it's not necessarily the best or only solution. Taking the historic and cultural record into account, "balance" between the rights of content creators and content users (and re-users) is the best way to deal with the conflict posed by new technology.
While I don't completely agree with some of Lessig's proposed solutions (at least without seeing more detail than the op-ed provides), it's a great starting point. The desire for more and more control on the part of the major players on this issue is not going to go away, and simply advocating for them to "get with it" and change their entire business to a model you prefer isn't going to foster change at all.
Lessig, I think, recognizes this, and further recognizes that if advocates of fewer restrictions are going to make any headway in achieving their goals, then some sort of "balance" is absolutely critical. One major step in that direction is the commercial/non-commercial use distinction; it's not as unworkable as you think.
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Re: Balance
While your model of free "infinite" goods and profitable "scare" goods may indeed work for some companies, it's not necessarily the best or only solution.
Really? If you looked at the economic evidence, and can point to a case that violates these basic economic facts, I'd like to know about it. I've been searching for the exception to the rule for years, and have yet to find a single example that, upon full inspection, shows that locking up the infinite goods actually provides a better solution. And, trust me, I've been looking pretty damn hard.
There is plenty of economic evidence for the fact that infinite goods are what lead to economic growth. All economic growth is driven by such infinite goods. Limiting those goods, by definition, limits economic growth and the potential of a market.
I'm not saying "just listen to me" I'm saying look at the economic evidence and then explain why any particular industry somehow violates these fundamental laws of economics.
It's possible that some do, but no one's pointed out a market yet that violates those laws.
Taking the historic and cultural record into account, "balance" between the rights of content creators and content users (and re-users) is the best way to deal with the conflict posed by new technology.
Can you point to an economic study that shows that? I'd love to see one.
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Re: Re: Balance
Really? All economic growth is driven by infinite goods? All? By definition, if a good is infinite, it's price would be close to zero. How does a nearly free good drive economic growth? Isn't rather that the use and trade of finite or scarce goods drive economic growth?
As for business models, the entertainment industry seems to be making plenty of money still and really doesn't appear to be going away anytime soon.
Can you point to an economic study that shows that? I'd love to see one.
The historical and cultural record of copyright has always been a balance between the rights of content creators and content users, since the beginning publishing. As new technology has changed the landscape, the law has always been revised to maintain a balance between those competing interests. This is no different, and Lessig, recognizing this, makes proposals for revision of copyright law that attempts to maintain that balance.
You also apparently choose not to address the more practical aspects of revising copyright law. On this blog you routinely advocate complete removal of restrictions based on copyright, insisting that everyone adopt your preferred business model as the *only* correct course. But you never address the nuts-and-bolts of actually moving these businesses in that direction. They're not going to do it just because you think it's the right thing to do.
If you ignore the balance of the rights of content creators and content users, then I can't see that you're serious about actually implementing reform. Lessig quite correctly recognizes that the balance must be addressed and makes real proposals about revising the law, proposals that might actually have a chance of being passed in Congress (of course, there's that sticky Berne Convention to deal with).
Even then, it won't be easy. But it would be a damn sight easier than the wholesale destruction of copyright. That's a dead-end path.
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Re: Re: Re: Balance
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Re: Re: Re: Re: Balance
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It's pointless to talk about how things should be, because they will never be that way.
Nothing will change as long as the corrupt politicians are willing to bend over for whatever groups give them the most money. That's not going to change via anything short of a full-scale revolution.
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Re:
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Fairness
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Re: Fairness
Diatribes like the one above do not promote intelligent discourse.
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YouMixIt
Post your music or remixes at http://www.YouMixIt.com and let the world tuned in. It's FREE!
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