What do you get when you mix P2P, inexpensive digital input devices, open source software, easy editing tools, and reasonably affordable bandwidth? Potentially, you get what Lawrence Lessig calls remix culture: a rich, diverse outpouring of creativity based on creativity. This is not a certain future, however. Peer-to-peer is on the verge of being effectively outlawed. Continuation of the current copyright regime would mean that vast quantities of creative content will be forever locked away from remix artists.
Lessig is joining the battle for the remix future on several fronts: the court battle on the legality of P2P; another legal battle to free "orphan works" from their copyright gulag; rolling out new Creative Commons "sampling licenses" with the help of big-name artists like David Byrne; and supporting the "free culture" work of Brazilian musician and culture minister Gilberto Gil toward a society based on freedom of culture.
In an extensive phone interview, I talked with Professor Lessig about all of these issues. Lessig will expound on many of these same topics in his upcoming keynote at O'Reilly's Emerging Technology Conference, March 14-17 in San Diego.
Richard Koman: What's the most critical area facing the Commons right now?
Lawrence Lessig: Right now, it's the continued legality of peer-to- peer technologies. The reason this has become so important is that the type of content that is getting mixed and shared is increasingly shifting to large-file video content. As it gets shared, relying on an infrastructure that keeps the cost of delivery low becomes essential. So if you're a filmmaker and you have a great new documentary film you want to make available on the internet, if you post it on your web site and it becomes successful, then you go bankrupt. If you can use peer-to-peer to distribute it, you can shift the cost of distribution to the recipient. So this infrastructure becomes essential to a certain kind of creativity in the future. Whether that's going to be possible in the future is going to turn on what the Supreme Court does.
Koman: In the Grokster case.
Koman: So fill us in on Grokster.
Lessig: So the issue in Grokster is whether a company that makes a technology that people can use for peer-to-peer file sharing should be responsible for the illegal behavior that is committed using their technology. And the general principle that has guided American technology to date is that the maker of a technology that is capable of lots of legal uses is not responsible for the illegal uses--for example, guns.
And that principle has been reinforced by legislative actions, saying that the manufacturer won't be responsible for the criminal actions of people using their technology, but in the context of copyright, that commitment has been much weaker. And so the copyright cabal is using both legislative and judicial pressure to try to create liability for companies like Grokster, so that those companies are driven out of business, and the opportunity for peer-to-peer technology to become an integral part of the infrastructure of the internet gets weakened.
Now I don't personally support the idea of people using peer-to-peer technologies to commit acts that are considered illegal. So I'm not interested in peer-to-peer surviving for the purpose of enabling copyright infringement. But I am really eager that the technology be allowed to exist so that the many legal uses that it will encourage--including uses that will support the remix culture--will be able to take off.
Koman: So what are the constitutional issues here?
Lessig: This is not a constitutional question in the Grokster case at all. The Grokster case is just a question of whether the court should apply a secondary liability on the manufacturer because the product was used illegally by a customer. And that secondary liability in the context of the copyright arena has been narrowly construed, because in the Sony Betamax case the court said that as long as a technology is capable of substantial noninfringing uses, the technology itself would not be considered an infringement. Congress, of course, is free to decide that a particular technology does more harm than good. But the principle of Sony is that it is Congress that should make that judgment and not courts.
Now the real reason that is an important principle is that courts are extraordinarily expensive places to adjudicate these questions. And the best example of that is the case of ReplayTV. They produced what looks like a modern version of the VCR and they spent two years in litigation with content owners who claimed that they were producing a technology that people used to create copyright infringement, and that they should be held responsible for it. Two years of litigation is enough to sap out all the resources of a startup company, and they were eventually forced into bankruptcy. I think the case stands for the obvious points that the Sony Betamax case was trying to make--if you can pull somebody into court under some vague standard of liability just because the tools are being used by people to create copyright infringement, that's a very good way to block new innovation that might change the way copyright material gets distributed. So it's a strategic opportunity to exercise control over the future of content development and distribution, and not so much as a way of protecting copyrights.
Now again, in that case, as in the VCR case, as in the peer-to-peer case, it's open for the copyright holder--which, of course, is one of the most powerful lobbies in America--to go to Congress and get them to address the specific problem that they complain about. And we can have an argument in Congress about whether some law should be passed banning a particular technology, but if you make the courts the arbiter of whether a technology should be allowed or not, then the courts become a tool, a weapon to be used in the marketplace. And they will stifle new innovation and new creativity because manufacturers are afraid of losing their money to lawyers.
Koman: What's happening at Creative Commons?
Lessig: One of the most exciting things was the Wired CD, which was released in October with 16 songs by artists who make their content available under what we call the sampling license, which invites people to sample and remix their content. In all but three cases, they could even remix the content for commercial purposes. The purpose of all this was to demonstrate that you could give up control over part of your rights and encourage lots of creativity on top of it without necessarily giving up the right to make money from the underlying content that's being sampled.
The sampling license in its pure form says, you can sample me, you can sample me for commercial purposes, but you can't copy my underlying song and distribute that for either commercial or noncommercial purposes. Again, it's encouraging the kind of creativity that the technology has at its soul: the creativity, which you're going to see more of in music and film, the creativity of remixing other creativity.
Koman: In one of your books you talked about how making a movie is such a legal enterprise; the filmmaker has to get permission for every little sample or snippet. Will the sample license address the fundamental economics of filmmaking?
Lessig: The problem with the legal system for film is that it's insanely complex. And there's only so much we can do, but we think we can do something. If you can begin to wrap content in licenses where the original creator signals there are subsequent uses available for this content, you could begin to develop a different norm--a norm around people being free to remix and build upon, to sample out of, to supplement, to criticize content that otherwise ... at a minimum, it's uncertain whether you have that right. More fundamentally, it's probably not the case that you have that right because of the way the copyright law has developed.
Nobody's going to remake the way Hollywood makes films right now, but the point to recognize is that the rise of digital technologies and the spread of the internet has encouraged a different kind of filmmaking to go on. So the idea that people with a Sony videocam who are trying to make a little documentary about something going on in their hometown that they'll share on the internet with anybody who wants to get access to it ... the idea that those people have to live by the same rules that 20th Century Fox lives by is crazy. The rules that 20th Century Fox lives by are crazy, but at least a big company like Fox can afford the legal costs to bear the burden of those rules. But not if you're the filmmaker who will increasingly become the modal filmmaker, people who just want to use the technology in a different way.
One way I've begun to think about this is to question whether within our culture, writing is allowed. Now when you say the word writing, for those of us over the age of 15, our conception of writing is writing with text, and in fact our tradition protects the right to write with text and to draw upon other people's writings with text quite substantially. People can review my book and quote my words in reviewing my book, criticize me, do whatever they want, and that's protected by a tradition of fair use that has taken hundreds of years to develop but is now pretty strong.
But if you think about the ways kids under 15 using digital technology think about writing--you know, writing with text is just one way to write, and not even the most interesting way to write. The more interesting ways are increasingly to use images and sound and video to express ideas. Well, all of those ways of writing under the law as it's understood right now are basically illegal unless you secure permission from the author up front. So the same act of creativity in some sense, you know, taking, creating, mixing out of what other people do, is legal in the text world and illegal in the digital media world. And the struggle is to get people to recognize that there's no good reason for the rules to be so radically different between the two contexts, and that we ought to be encouraging a wider range of creativity using digital media--both because there are many people who would be extraordinarily talented in exploiting those types of creativity, and also because it would really spur growth in collective literacy about how media itself functions and how it has its effect.
Koman: So, the spread of everything from cheap digital camcorders to iMovie to inexpensive hard drives to sampling, the way that creativity happens in the digital realm is just so different from the way it happened in the predigital realm that different rules are needed?
Lessig: Different rules, same principle. So the principle is that the law ought to protect people who need exclusive rights in order to enable their creativity. I believe copyright continues to be an important part of the story. But there's a vast amount of content that is locked up by copyright now for no purpose at all. It's just locked up because the system has become lazy about distinguishing between content that needs the benefit of an exclusive right and content that doesn't.
That laziness is the subject of the Kahle v. Ashcroft case, for which we have just filed a brief in the Ninth Circuit. We're challenging, under the First Amendment, pursuant to a part of the Eldred v. Ashcroft opinion, Congress's shift from a copyright system that systematically tried to distinguish work that need the benefit of copyright from work that didn't, by a system of formalities or registration requirements or renewal requirements. They were all part of what we call an opt-in system of copyright, which said you got the benefit if you need it, but if you don't take some affirmative steps you don't get the benefit.
In 1976 the law changed to basically make copyright automatic. The consequence of making copyright automatic is that our whole culture becomes copyrighted automatically and you're only allowed to use it, or remix it, or share it, or spread it, if you have permission from the copyright owner. Now that rule of get-permission-first makes sense if what you're talking about is Britney Spears' work or the work of John Grisham--commercially available work where the copyright is serving a function to promote progress by creating incentives for stuff to be produced--but there's tons of stuff that has no continuing commercial life at all but continues to be locked up by copyright. And the basic point we're making there is, the system is not doing any good for anybody, and in a context where we have an extraordinary amount of creative potential out there, the idea that all creativity has to be channeled through a lawyer just doesn't make First Amendment sense.
Koman: What do you make of the Copyright Office asking for comments on the orphan matter?
Lessig: Extremely encouraging. This is something we've been focusing on for the last five years--to try to get them to pay attention to the way in which the copyright system is designed to encourage creativity, but it's also designed to ensure access to works that have no continuing commercial value at all. And so we're doing what we can to encourage people to participate in that process, to tell their stories. My in-box is filled with people telling me stories about how insane this existing system is.
Koman: Could the Copyright Office simply issue a ruling that fixes this situation, so the case wouldn't have to proceed through the courts?
Lessig: They can't really do anything on their own. But they're an essential part of driving sensible policy from Congress. So our hope is that they'll develop a substantial enough record to say you need to think about how to deal with this, and that record will include some suggestions about how to deal with it, and begin the policy-making process. But policy making is going to require a lot of pressure, both political pressure and possibly judicial pressure.
One of the hopes we have from the Kahle case is that it will create pressure for copyright owners to support the idea of cleaning up the system, because they'd be afraid that if we win then they're going to have to go back and repass all of the extremely unpopular copyright term extensions that we were challenging in the Eldred case. I mean, if we win in the Kahle case, Mickey Mouse is allowed to have another 20 years of copyright protection, but they'd have to pass the law again, and, of course, the opposition this time would be much more substantial.
Koman: When we spoke a couple of years ago, you talked a lot about how things like DRM technologies allow copyright holders to expand their effective rights to limit use of content, even though legally those rights have not been ceded to copyright holders. How does that look to you now?
Lessig: That problem hasn't changed, and I think it's in fact gotten more urgent because there seems to be a settlement that's been struck in this battle, a settlement that we're going to have very strong DRM and very liberal fair use. But by "fair use," what people mean is the right to make free copies so long as you use them within your home. Now I don't think that's the most important part of what fair use is--that kind of fair use is exactly not the kind that remix culture needs.
When this settlement gets implemented through technology, what that means is that the technology will have erased the opportunity to use this content in the remix way and therefore destroy the opportunity to explode the potential of this technology to change the way people communicate and spread their communication.
I'm constantly seeking ways to express this in metaphors, and one that struck me recently was, imagine a group of butchers who've spent their lives dealing with cut-up meat. That's the way they understand how to make money, to cut up meat and sell it in the most efficient way. And then they come across a racehorse and, of course, their first intuition is, here's a valuable resource--we'll cut it up and sell it in bits. But all of us recognize that the racehorse is more valuable without being ground into this system of butchery if it gets to be used in this different way.
And that's the way I think we should think about our culture. Their conception of how to make money off the culture is to cut it up and sell it like pieces of dead meat. And that's of course valuable for butchers, but it's not clear it's valuable for society. If all content is locked in these little separate containers and you have to seek permission to do anything with it, then a huge potential, both economic and social, will have been lost.
Koman: You were in Brazil with Gilberto Gil. What was that all about?
Lessig: I was at the World Social Forum, but much of what was going on at the World Social Forum was related to Brazil's leadership in spreading free software and free culture. So the free software movement has exploded in Brazil, led in part by the government, which is increasingly using free software in its own work and requiring it for much of the government's coding work. The free culture movement is being pushed in Brazil largely because of the culture minister, Gilberto Gil, who envisions a future where an increasingly large proportion of the content in Brazil is made available to the world via Creative Commons licenses.
Now the strategy in both cases is to increase wealth in Brazil. The view of free software is that it's far better for Brazil if the technology industry is trained in the skills needed to build and modify and extend free software than if they're trained in the skills of how to implement a patch for the latest Windows virus. That's about technology self-sufficiency.
And in the free culture context, Brazil is eager to have their music spread broadly to increase the demand for Brazilian musicians. They have a project to create a huge archive of Brazilian music licensed under Creative Commons licenses, which will encourage people to get access to it and share it for noncommercial purposes and remix it. And the bet is that once that's implemented, it will actually increase the ultimate benefit to Brazilian musicians--relative to this world where there are just a handful of Brazilian musicians who are able to get their work heard outside of Brazil.
It's perhaps the most exciting place in the world right now for these issues. They're extremely well-educated and committed people there. And the movement is fundamentally political. It's a mix of all kinds of people from Brazil--I mean, particularly young, but all sorts of young people. Men and women, people who have a technical background, people who don't--all of whom are demanding a cultural and technological future for Brazil that is not dependent on someone else. That's the essential feature in both the software and culture contexts. They want a future where they're not dependent on Microsoft and a future in which they're not dependent on rich copyright holders in the United States. So I would love to spend much more time down there, but more people should.
Koman: So that sounds like it's essentially an economic issue, a question of how a country decides to control its culture and how it chooses to have people monetize that.
Lessig: Yes, exactly right. And I think it's important that people see it like that, so people don't simplify the debate about intellectual property into a debate about commercial development. These are people who want commercial development to explode, but they're just skeptical that the world of proprietary software and proprietary culture is the best way for it to explode.
Now people who see the world in black and white think that the only way alternative to total ownership of culture, total ownership of software, is communism, so Bill Gates famously referred to the skeptics of intellectual property as a bunch of communists. But that's silly. What is true in both contexts is that a better balance between proprietary and nonproprietary is a more successful way to encourage innovation and growth.
This is a battle that Microsoft is increasingly afraid of, because their objective now is to demonstrate to Brazil and others governments that free software is more expensive than proprietary software. Now I think that claim is not true, but the Brazilian response to it, I think, is brilliant. Their response is, "OK, fine, let's assume you're right--we don't think you're right, but let's assume you're right. What do we get with free software? We get a technology sector that is trained in a wider range of skills than would be the case if their only mission in life were to maintain Microsoft proprietary systems." Rather than being sharecroppers, they want to be independent farmers. And that is a brilliant insight about the potential for this to enable developing nations.
Richard Koman is a freelancer writer and editor based in Sonoma County, California. He works on SiliconValleyWatcher, ZDNet blogs, and is a regular contributor to the O'Reilly Network.
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