Lessig Chats

Lawrence Lessig has a new book out that is generating a lot of attention and interest, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. We have discussed it here, here, here and here.

Yesterday the Wahsington Post conducted a fascinating online chat with Lessig:

David McGuire: Dr. Lessig, thanks for joining us. In your new book: “Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity,” you argue that the debate over piracy has obscured a larger movement on the part of the media industry (movie, music and software makers) to “remake the Internet, before it remakes them.” How, practically, is that movement unfolding? Where are those battles being fought?

Lawrence Lessig: The content industry has done a good job convincing the world that the internet will enable what they call “piracy.” That has obscured the fact that the internet will also enable an extraordinary potential for creativity. And it has obscured the fact that the weapons they use to eradicate “piracy” will also destroy the environment for this “creativity.” They spray DDT to kill a gnat. We say: “Silent Spring.”

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Bellingham, Wash.: What are your thoughts on the debate on anticircumvention regulations and how they may impact fair use? Do antipiracy concerns outweigh the importance of allowing legitimate uses of circumvention software (for example, by DVD owners making backup copies)?

Lawrence Lessig: The anticircumvention regulations of the DMCA have been interpreted in a way that does plainly restrict any sensible understanding of “fair use.” They are therefore regulations that will be found, imho, to violate the constitution. As the Court indicated in Eldred, fair use has a constitutional basis. Congress is not free simply to remove it. Thus whether Congress — “persuaded” by the content industry — believes that antipiracy concerns outweigh the constitution or not, no law may outweigh the constitution.

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Washington, D.C.: You are on the board of the Electronic Frontier Foundation, which has recently volunteered to defend alleged copyright infringers that are being sued by copyright holders, the RIAA.

As a law professor and a copyright holder yourself (Free Culture book), do you feel that the RIAA has a legitimate gripe in protecting what property is legally belongs to them?

Would you support a foundation established to defend literary copyright suits, if professors were to crack down on student text book copying – or even worse, yours?

Lawrence Lessig: I believe that copyrights, properly defined and reasonably balanced, ought to be defended by copyright owners, and organizations (whether the RIAA or others) devoted to defending such rights. I’m sure everyone at the EFF believes the same. But just as a lawyer who defends someone charged with auto theft does not therefore support auto theft, so too with the EFF: They are, rightly, defending the rights of individuals that they believe, rightly, should not be prosecuted in this way under this law.

As a law professor — and more importantly, as a citizen of the United States — I absolutely support their actions. We here are supposed to believe in the right to a defense. We are supposed to believe that laws are not to be overreaching in their effect. We are supposed to oppose abuse of the power of prosecution. And I fundamentally oppose those who would question anyone who would defend rights that our constitution was designed to guarantee.

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Washington, D.C.: Good afternoon – Prof. Lessig, will you state once and for all that the widespread theft (or whatever term you wish to apply) of copyrighted works online is illegal? Can the conversation about copyrights in the digital age at least recognize this? Don’t you feel that it is a dangerous society that believes that because the Internet lets you do something, it is permissible to do so…whether morally or legally right or wrong? I find that in all of your articulate presentations, you seem to blame the people who create and invest in the creation of music, movies etc. and place no blame on those who take those works without compensating the artists/copyright holders.

Lawrence Lessig: Great question. First, I have “recognized” this. Here’s a great derivative work of my book — permitted because I released my book free under a Creative Commons license. On that page, each paragraph of my book has been marked by its own url. As you’ll see at paragraphs 84, 110, 367, 372, 377, 382, 388, 389, to mark a few. Or go here and download the book and look at the section “Why Hollywood is Right” beginning at 124.

But my whole point is that if we as a people can think about only one issue at a time, then we as a culture are doomed. For if we set our policy focused on one end only — ending piracy — then we will end a tradition of free culture as well.

Yet the content industry has done so well because they’ve convinced DC that there is really just one issue out there — piracy. And they certainly are more successful than I in shaping this debate. So it may well be that we as a people can think about only one issue at a time. And again, if so, then we as a culture are doomed.

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Takoma Park, Md.: Is it fair to call pervasive free availability of any copyrighted song anyone can think of a “gnat”? I appreciate your concerns but it seems to me that you’re downplaying the impact of file-sharing on creative industries.

Lawrence Lessig: Is it fair? Well, what’s the harm. In my book, I assumed there was a substantial harm, and the question I asked is: how might we minimize the harm while not destroying the internet or its potential. So I would push for different policies even assuming the gnat is a lion.

But since my book was published, there has been substantial work — by independent researchers, not paid by the content industry or anyone else — to suggest that there is no substantial harm from p2p sharing. More precisely, that when you add up all the effects (people exposed to new content which they buy, etc.), the effect of sharing is statistically indistinguishable from zero.

Whether you buy that analysis or not — and, I think we should remain skeptical about it until it has had a good chance for further peer review — I do think that relative to what we lose by waging this war, the interests of one particular industry are small.

By this system of federal regulation, we are creating a regime of creativity where the only safe way to create is to ask permission first. You might think that’s simple, but just try it someday. But I’m with those who think that there’s something fundamentally wrong about this regime, whether it is simple or not. I as an academic don’t need anyone’s permission before I write an article criticizing someone else. But the same freedom is not accorded a filmmaker, or webmaster, under the rules as they exist today.

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Madrid, Spain: Do you really think there will be a unbreakable technology to protect CD, video or stop MP3 exchanges in the web? In others words, is it possible to protect intelectual property with a piece of software? Do you really think the technological measures will be effective?

Lawrence Lessig: By “do you really think” you make it sound as if I’ve suggested such a “solution.” I have not. Indeed, I think all solutions that rely upon technology to control access suffer important and unavoidable costs. More importantly, an arms race around technologies for locking up and liberating content is a waste. We should push for a regime that helps assure artists get paid without simultaneously breaking the most valuable features of the internet.

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New Orleans, La.: Do you think that the Court’s strict constructionist reading of the Copyright Clause in Eldred blows open the door to the continued and expanding success of special interests appropriating the public domain?

Lawrence Lessig: Yes, it absolutely does. By ignoring the original meaning of the constitution’s text — indeed, by ignoring even the text, for the Court does not even try to explain what the words “to promote the Progress of Science” means — the Court has given Congress, and lobbyists, a green-light to continue what they have done so well over the past 40 years — extend the term of existing copyrights. It is totally obvious that in 2018, there will be another bill to extend copyright terms. It is totally obvious that all the money in the world will be spent by those who have copyrights that are about to expire. And totally obvious that nothing (yet) in the Court’s jurisprudence that would stop such an extension.

Now of course, there’s lots that can, and must be done, independent of the Court. PublicKnowledge.org, for example, is doing a great deal of good to get Congress to consider reasonable balances in the field of copyright. They have, for example, taken up the challenge of getting congress to pass the Public Domain Enhancement Act, which would require a copyright owner, 50 years after a work has been published, to register the work and pay $1. If the owner pays the $1, he or she gets the benefit of whatever term Congress has set. If he or she does not, the work passes into the public domain. We know from historical data that more than 85% of copyrighted work would pass into the public domain after just 50 years under such a regime — clearing away a mass of legal regulation governing the ability of people to reuse culture. But even this reasonable proposal is being resisted by, for example, the MPAA.

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Georgetown: Isn’t the source of the problem in copyright law the extension of the copyright to derivative works? This aspect of copyright should be limited or eliminated after, say 50 years. That way Disney would be able keep selling its classics while the others would be able to use the work as the basis for new creations.

Have there been any such proposals in Congress?

Lawrence Lessig: This is a great suggestion. Yes, the one really radical way in which copyright law today differs from the copyright law our framers gave us is derivative rights: They didn’t protect them, and we do. And that extension does, in my view, muddy many issues. I understand and support laws which control the ability of A to sell a verbatim copy of B’s copyrighted work without B’s permission. But whatever wrong that is, it is totally different from the “wrong” of building a work based on B’s work. Our law does not adequately distinguish between the two, and it should. A shorter term might be one solution. I suggest others in my book. But it is plainly an area where serious reform could do serious good….

And that’s only about half the chat – click over for the rest. The more these issues get out there, the better.