Mark Helprin Stole From Techdirt Commenters (Using The Logic Of Mark Helprin)

from the where-should-he-send-the-check? dept

Last week, I wrote about Mark Helprin's error-filled Wall Street Journal op-ed that was really just an attempt to generate attention for his new book -- attacking everyone who criticized his 2007 NY Times editorial. I, of course, am one of those who challenged Helprin's reasoning at the time. Of course, as much as I write about this stuff, I'm no Larry Lessig or James Boyle, and I certainly never expected that Helprin would even bother to read what I wrote. And, as I've been reading his dreadfully written book, I didn't notice anything to indicate that Helprin was directly addressing any of the points I raised.

However, I was just reading Larry Lessig's long and thorough takedown of Helprin's book, and noticed something odd. Early on, Lessig states:

The product of this feeding, Helprin suggests, is just so much trash. The work of the Internet is an intellectual waste. No serious reader, or especially writer, should pay any attention to this waste.

But then here's the astonishing fact about Digital Barbarism: Though the Internet is a waste, though blogs are "subliterate" and wiki's are written "the way Popeye speaks," Helprin draws exclusively upon the Internet to form the knowledge he needs to launch his attack. He cites no book, or scholarly article, that might help explain the copyright puzzle that started him on his odyssey. Literally everything he points to to explain the weirdness that is copyright is either a blog, or a wiki, or an essay in an Internet publication.

Now I like the Internet as much as the next guy, and I guess I had never really had to think about the question before. But Helprin has convinced me that you can't understand the subject of copyright law by simply reading blog posts. To get it, or at least to get it well enough to write a frakking book about it, you're going to need to read something other than techdirt.com.

Emphasis mine -- obviously. Now, while this might seem like a bit of a slap at Techdirt, I actually agree -- wholeheartedly. I certainly hope that no one gets their copyright education solely from any blog, whether it's written by me or by William Patry. However, it struck me as odd that Lessig specifically called out Techdirt, seeing as I hadn't even noticed us being mentioned at all in the 1/2 (or so) of the book that I've gotten through (and I've never spoken to Lessig, nor seen him mention Techdirt in the past). So, I pulled out my copy of the book, and went to look at the endnotes for the first time... and realized that a rather large number of the quotes that Helprin spends his time deriding are pulled from Techdirt. But not from what I wrote... but from the comments (which he refers to, oddly, as "sections").

Now, I'll be the first to admit that we have all types of folks who show up in the comments -- from incredibly intelligent knowledgeable experts in the field of copyright law to interested amateurs to the totally clueless to trolls. To pick and choose a few crazy comments, and position them as if they're representative of the common views of folks questioning Helprin's logic, is incredible. I could equally pick out some of the more ridiculous pro-infinite copyright comments on Techdirt, and make the same nutty claims about those who support stronger copyright laws. Just yesterday, someone wrote in our comments:

There is never a proper debate for copyright theft. If you create it, then you own it. Many countries have unlimited copyright. Maybe that's what North America should consider. If it is created by your intellect then it is yours. You may pass it along as you wish, but it is yours forever.

Now, this is all sorts of wrong, but I assume this is one incredibly misinformed individual, rather than a representative of, say, the RIAA. However, Helprin has no such qualms. He takes random comments from up and down that Techdirt post, and assumes they represent the secret agenda of groups like Creative Commons (who he refers to as an "informal" group building software to abolish copyright -- again, all sorts of wrong).

Even more amusing? With at least a couple of the comments that Helprin quotes, he's clearly taking them totally out of context. For example, there is one point in the book where Helprin goes against people who pointed out that he had written a book called Winter's Tale, and assumed (incorrectly) that it was based on Shakespeare's The Winter's Tale. In it he quotes a commenter on Techdirt ("section 20") who wrote: "So then Halpron's the guy who did the "West Side Story" job for Shakespeare's The Winter's Tale?" and uses that as evidence of us morons critiquing him. Except, he left out the rest of that comment, which made it clear that the whole thing was a joke: "Was it any good? Have they made a movie out of it yet, or was it only on Broadway?"

And, of course, even for the people who legitimately thought that Winter's Tale was based on Shakespeare, that mistake is certainly no more egregious than the many, many, many mistakes that Lessig lays out in his review of Helprin's work -- specifically taking him to task for clearly not having bothered to read a single scholarly piece on copyright, but relying entirely on hand-chosen silly comments on Techdirt.

Among the errors are things like, "It would be one thing if such a revolution produced Mozarts, Einsteins, or Raphaels, but it doesn't," to which Lessig notes: "Helprin apparently didn't notice that none of those creators enjoyed anything like the "copyright" of today. One might as well say the world of non-copyright gave us Mozart, Bach and Beethoven, while the world of copyright gave us Britney Spears. That too would be a bad argument, but just [the] sort of argument that is at home in this book." It's actually even worse than that. Some of Mozart's greatest works were derivative works that likely would be considered infringing today. Helprin also seems to not know what was in the last copyright extension act, known as the Sonny Bono Copyright Extension:

Helprin writes: "Previously, a copyright assigned to a publisher or a studio would remain there for all the days of its life. Now, and thanks to Sonny Bono, if it is not a work for hire (which nothing should or need be), a licensee can keep it for only thirty-five years, after which the rights return to the author, the composer, the artist, or the heir." (127). Wrong. The Sonny Bono Act didn't create the termination right. It merely extended it.

Yet, Helprin believes that a random small error (which was actually part of a joke by an Anonymous Coward on Techdirt) gives him proof that all copyright critics are clueless? Even if you consider the "errors" of equal magnitude, we're talking about an anonymous quick jokey comment vs. a "professional" book by one of the nation's top authors, from a top publishing house with (one assumes) an editor.

Still, the most amusing part of all, was Helprin's attempt to defend copyright infringement as being the same as theft -- an old argument, and one that's been dismantled many times (including, of course, by the Supreme Court, who famously stated: "interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use"). However, Helprin doesn't even bother to look at the intellectual arguments around this issue, preferring to use an emotional tale from his youth about "stealing" an ear of corn in the field, arguing with a farmer about it, and then realizing the incredible importance of never "stealing" anything.

Yet, as Lessig points out:

So should Helprin have been ashamed that he stole the farmer's food. Of course he should be! What kind of confused mind would think it right to take another person's property? There are a million reasons Helprin's juvenile behavior was wrong, not the least that it would deprive the farmer of a chance to profit from the food he was growing. Helprin's taking that ear of corn meant that the farmer couldn't sell it. It is inconceivable that this should even have been a question for him.

But what's less clear is what Helprin thinks follows from this moral tale. Does he think that it shows that one can't "take" another person's words? That when, for example, I quote a sentence from Helprin's book in this review, I am doing the same thing he was doing when he stole some corn?

Of course, as Lessig then notes, the quoting is fair use -- but according to Helprin's own corn-story description of the importance of never stealing even an ear of corn, any "taking" of one's words would also be stealing. So, by that reasoning, considering how he quoted (by my count) 12 separate comments from the Techdirt story, one can conclude that Helprin clearly believes he has stolen from the commenters here twelve times. If he's willing to send us our royalty check, I'll make sure the money is distributed to our commenters. Mark, we're waiting! In the meantime, I can't wait to see what comments you guys make on this post. Be sure to provide only the best quality stuff, since it may be the raw material for Mark Helprin's next book!

Filed Under: copyright, creative commons, larry lessig, mark helprin, techdirt

Not Smart: Warner Music Issues DMCA Takedown On Larry Lessig Presentation

from the this-is-going-to-hurt dept

If there were anyone out there to whom you would not want to send a random takedown notice for an online video, it would probably be Larry Lessig. Given that Lessig has become the public face for those who feel that copyright has been stretched too far, as well as being a founder of Stanford's Fair Use Project, and who's written multiple books on these issues, you would think (just maybe) that any copyright holder would at least think twice before sending a DMCA takedown on a Larry Lessig presentation.

Apparently, you'd be wrong.

Lessig has announced that Warner Music issued a DMCA takedown on one of Lessig's own presentations, in which his use is almost certainly fair use. Lessig, of course, is a lawyer, and a big supporter of fair use, so it's no surprise that he's also said he's going to be fighting this.

The thing that I can't understand is who at Warner Music would decide this was a good idea? We've seen Warner make a number of highly questionable moves over the past six months, but this may be the most incomprehensible. Warner Music may claim it was an accident or that it didn't mean to send the takedown, but that's hard to fathom as well. The DMCA rules are pretty clear, that the filer needs to clearly own the content, and previously lawsuits have said they need to take fair use into account. I'm guessing we haven't heard the end of this yet...

Update: Some people have been asking which Lessig presentation was taken down. It's been reposted elsewhere, so you can check it out, and then explain how Warner Music has any claim to a takedown.

Filed Under: copyright, dmca, fair use, larry lessig, takedown
Companies: warner music group

Court Rules Part Of Copyright Act Unconstitutional

from the wow dept

A year and a half ago, we were quite surprised when the 10th Circuit Court of Appeals actually sided with Larry Lessig, concerning how a part of copyright law that pulled foreign works out of the public domain was potentially unconstitutional. This was in the "Golan case," the third of three big copyright cases Lessig had championed. The appeals court had sent the case back to the lower court, and that lower court has now decided that, indeed, a trade agreement (URAA) that pulled foreign content out of the public domain is unconstitutional as it violates the First Amendment. While it may seem narrowly focused, this is the first case that has successfully challenged a part of copyright law as being unconstitutional. The ruling will almost certainly be appealed, so it's not over yet -- but it's still a rare and important win for those who are fighting to keep copyright law from destroying the public domain.

The specifics may seem a bit down in the legal weeds, but they're quite important. In the famous Eldred case, which challenged the constitutionality of continual copyright extension, the Supreme Court held that this was within Congress' purview, so long as it didn't muck with "the traditional contours of copyright law." The two later cases that Lessig was involved in both focused on this claim, trying to note that changes in the law did not, in fact, stick with the traditional contours of copyright law, and in removing content from the public domain actually violated First Amendment rights. In this case, the plaintiffs had relied on previously public domain works, that were suddenly pulled back under copyright by this treaty. They argued that taking content back out of the public domain went against the traditional contours of copyright law. While the lower court initially disagreed, the appeals court reversed the decision, and sent it back to the lower court -- noting that since the traditional contours of copyright law had been changed, the new law had to be reviewed as to whether or not it violated the First Amendment.

This latest ruling said that, yes, it appears that it did in fact violate the First Amendment -- pointing out that while Congress did need to comply with international treaties, it did not have to do so in the way it did here (i.e., it could have created an exception for those who were already making use of these works in the public domain):

Congress has a legitimate interest in complying with the terms of the Berne Convention. The Berne Convention, however, affords each member nation discretion to restore the copyrights of foreign authors in a manner consistent with that member nation's own body of copyright law. In the United States, that body of law includes the bedrock principle that works in the public domain remain in the public domain. Removing works from the public domain violated Plaintiffs' vested First Amendment interests. In light of the discretion afforded it by the Berne Convention, Congress could have complied with the Convention without interfering with Plaintiffs' protected speech. Accordingly--to the extent Section 514 suppresses the right of reliance parties to use works they exploited while the works were in the public domain--Section 514 is substantially broader than necessary to achieve the Government's interest.

So, yes, this is a narrowly focused issue (and likely to be appealed right back up), but just the fact that a court has finally realized that copyright law can violate the First Amendment is a big win. Where this could get more interesting is if it eventually gets appealed up to the Supreme Court, and the court recognizes (as it hopefully will) that there's a discrepancy between this ruling and the ruling in another of Lessig's cases, Kahle v. Gonzales (which happened in the 9th circuit), and decides to look into whether or not certain changes in copyright law really did change the traditional contours of copyright law.

Filed Under: copyright, first amendment, golan, larry lessig, public domain

ASCAP Continues Its Attack On Lessig; Free Culture

from the but-why? dept

We were already quite surprised when ASCAP set up a private lunch to come up with ways to "counter" the viewpoints of folks like Larry Lessig and various "free culture" supporters. After all, songwriters who have been embracing those concepts are making more money because of it. The problem, of course, is that those means often don't send that money through ASCAP. Still, as an organization that claims it represents the interests of songwriters, you would think they'd be thrilled to have songwriters make more money. Instead, it appears they would like to have songwriters make less money, and to attack Larry Lessig in the process.

Their latest move was to send out an email to members with links to various articles and commentaries that try to undermine Lessig's ideas. It's basically ASCAP propaganda. I guess they're afraid that songwriters might discover that they don't actually have to be beholden to ASCAP to make money.

Filed Under: copyright, culture, larry lessig, remix
Companies: ascap

The Myth Of The Original Content Creator

from the what's-original? dept

A few people have directed my attention to copyright lawyer Mark Fischer's review of Larry Lessig's most recent book, Remix. The review is worth reading -- and there are some points on which I agree with Fischer -- particularly with the near impossibility of separating commercial use from non-commercial use. While Fischer seems sympathetic to the idea that there are some problems with copyright law, he keeps going back to one central idea that is the core of his problem with Lessig's book: that allowing others to remix content without getting permission potentially harms the "original creator."

This is a myth that is all too often found in IP law -- both in patents and in copyrights. This concept of the "original creator" of a piece of work. All works are built on those that came before. All works are inspired by and use bits and pieces of what they've learned or what they've seen, heard and felt. Pretending that there is a true original creator who deserves credit, money or control is a problem -- because it means no new creative works could be done without getting permission. That would be a tremendous hindrance on creation -- rather than progress (as the Constitution intends).

But because of this false belief in an original creator, Fischer creates some tradeoffs that don't really occur. Specifically, he notes:

If we move toward making content free for copying, distribution and remixing, the professional creators and their distributors will have an even tougher future. Erosion of the copyright system comes at a price. If we have to choose between encouraging original creativity and remixing, why not err on the side of encouraging the originators?

There are multiple problems with this statement. It makes the assumption that allowing free copying of your works makes it harder to earn money. Yet, that's not what we're seeing at all. Those who put in place smart business models have found that it's even easier to make make a lot more money than in the previous method. Erosion of the copyright system does not come at a price. It merely changes the business model around, and opens up tremendous new opportunities. And that's for everyone because it makes the process of building on the works of others easier -- and since all creativity really does come from building on the works of others, then creativity has the ability to flourish.

So, let's get rid of this myth that there's some "original content creator" and that said "original content creator" needs to be "protected." Neither point is true. Every content creator is building on the works of others, and there are plenty of business models that can be put in place easily that don't require "protection" at all. It may be more difficult for someone who makes their living helping enforce those protections to see it, but we're seeing it every day. Why block off all those innovative new content creators just because of a couple of myths?

Filed Under: content, copyright, creators, inspiration, larry lessig, mark fischer, remix

Is Someone Playing A Joke? Why Would Penguin Force Colbert To Take Down Lessig's Remix?

from the something's-not-right dept

Last night, Larry Lessig went on The Colbert Report to talk up his latest book Remix. While I think Remix is an important book and Lessig is a brilliant commentator on these issues, I was a little disappointed by the performance, but I'm willing to chalk it up to the fact that appearing opposite Colbert is incredibly difficult (almost impossible), and Colbert is the best at throwing interviewees off their game. Of course, pretty much everything Colbert does is satire, and included in the video was the joking suggestion that no one take the video and remix it. Colbert, of course, has been one of the champions of getting folks to remix videos for him. So, obviously, the idea was to get more folks to remix.

However, just a little while ago, some folks started noticing a message at the top of Colbertnation.com saying:

Lawrence Lessig's REMIX has been removed at the request of Penguin Publishers.

At this point, it's unclear what exactly has been removed. The video of the interview is still online, so that's not what's been removed. Some are wondering if Colbert originally posted a downloadable copy of the book itself that has been removed. Many folks have noticed that Remix is not available for download, despite promises that it would be. Apparently, the free version of the book has been delayed until May, which is pretty lame, itself. And, then, of course, there's the possibility that the "removal" notice itself is just a Colbert joke -- though, it almost seems too subtle for Colbert's style of humor. If anyone has more info on what happened here, it would be great to know. Update: Adam Green, who works with Lessig and was at the taping stopped by to say, indeed, that it was a joke. If so, it's a bit odd, since they never even bothered to make clear what it was that was taken down.

Filed Under: copyright, larry lessig, remix, stephen colbert
Companies: penguin publishing

Lessig: Ditch The FCC, Replace It With Innovation Agency

from the stuff-to-think-about... dept

Larry Lessig has a piece in Newsweek suggesting that the new administration abolish the FCC and replace it with something he calls the Innovation Environment Protection Agency (iEPA) -- whose purpose is less about control, and more about getting government out of the way when not necessary. The purpose of such an agency would be: "minimal intervention to maximize innovation," with a core focus on keeping the government away from handing out favors and, more importantly, carefully reviewing any government monopolies to see if they cause net benefit or net harm. He starts off by talking about monopolies on things like spectrum, but says the agency can and should expand to cover monopolies such as copyright and patents.

There's a lot to like in the proposal, in theory. One of my big problems with pretty much any government program is how little effort there is to actually look at the basic question of: is this doing what it's supposed to do? And, if not, how do we change that? The GAO does a little bit in this area, but seems mostly powerless to actually effect change. Can you imagine if there were anyone in the government who was actually looking at some of the studies showing how much harm certain government-backed monopolies do to the economy -- and had the power to do something about it? However, it seems quite likely that, in practice, the iEPA would simply get co-opted by industry types, just as the FCC has, and the end result would be pretty ineffectual, if not downright backwards looking. A government agency designed to get the government out of the way? Not sure it's really possible...

Filed Under: fcc, innovation, larry lessig, monopolies

All-Star Witness List In Lawsuit Over Constitutionality Of RIAA Lawsuits

from the that's-quite-a-witness-list dept

Last month we had mentioned how Harvard Law professor Charles Nesson was taking on the RIAA's strategy of suing music uploaders by claiming that the laws the RIAA was relying on were unconstitutional. That case ("the Tenenbaum case") started moving forward this week, and the Associated Press had a story at the beginning of the week, which about fifty people submitted (with some angrily wondering why we hadn't written about it). We didn't write about it because it was basically the same story we had covered in October.

However, there is some interesting news in the case, as Ray Beckerman has posted the proposed witness list put forth by Tenenbaum's legal team and it is quite the star-studded list. It's becoming quite clear (if it wasn't already) that this is a case where a bunch of different folks in the "copyfighting" realm are converging to confront the RIAA's legal strategy. The list includes:

• John Perry Barlow (former songwriter for The Grateful Dead, founder of the EFF, and well known digital thinker)
• Prof. Johan Pouwelse (technical and scientific director of European research project P2P-Next)
• Prof. Lawrence Lessig (needs no introduction, I imagine, for folks around here)
• Matthew Oppenheim (who has a somewhat murky relationship with the RIAA, at times representing the RIAA, and at other times insisting he does not represent the RIAA)
• Prof. Terry Fisher (a director of Harvard's Berkman Center and author of Promises to Keep, an early book looking at how the internet was changing the entertainment industry, and how it's business models need to change)
• Prof. Wendy Seltzer (well known copyfighter, law professor, former staff attorney at the EFF and founder of the Chilling Effects site)
• Prof. John Palfrey (Harvard law professor, co-director of the Berkman Center, author of Born Digital)
• Prof. Jonathan Zittrain (Harvard and Oxford law professor, co-director of the Berkman Center, author of The Future of the Internet)
• Andrew Grant (former antipiracy specialist at DRM company Macrovision)

That is quite the all-star list. This case is going to be a fun one to watch.

Filed Under: andrew grant, charles nesson, john palfrey, john pouwelse, jonathan zittrain, larry lessig, matthew oppenheim, tenenbaum, terry fisher, wendy seltzer
Companies: riaa

A Remix Weekend: Book And Movie About Remix Culture Released

from the have-fun dept

We just covered Larry Lessig's recent opinion piece about how to save remix culture (which, tragically, was entitled "a defense of piracy" -- which it's not). However, that was just a teaser from his new book, REMIX, which has now been released. And, of course, true to form, Lessig will soon release a copy of the book online for remixing purposes. And, as Mathew Ingram tells us, today an "open source documentary about copyright and culture" called RiP: A Remix Manifesto is premiering as well. That movie was made, in part, with the help of many people working on making it better. Here's the trailer: The movie apparently focuses on Gregg Gillis, better known as Girl Talk, the remix artist we've discussed in the past plenty of times. It certainly looks like the book and the documentary will go together well (Lessig appears in the film), and hopefully will get people realizing that creativity has always involved standing on the shoulders of giants, and being able to improve on the works of those who came before you -- and with draconian copyright laws, we're often stamping out that possibility.

Filed Under: larry lessig, remix

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.

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.

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.

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.

Filed Under: copyright, culture, larry lessig, remix