Whose Entertainment Is It?

The Chicago Tribune interviews leading copyright liberalization advocate Lawrence Lessig and Ken Waagner, who runs Wilco’s Internet operations:

Have you both heard “The Grey Album”? What do you think of it?

Ken Waagner: I think it’s interesting. I don’t think it’s an amazing album, but I think the concept is really amazing and it’s pretty well executed.

Lawrence Lessig: Well, I’m a lawyer so I don’t know anything about the quality or the taste. . . . I find it amazing that it generated the level of protest that it generated. Because you know five years ago, I don’t think there would have been the ability to build an online protest movement around copyright, but this is what they did.

It’s one thing to defend fair use in an ordinary case, but this was a pretty blatant taking without any permission of other people’s work and remixing it. And the idea that that would have generated the political response that it did — I think it’s bad news for the record companies.

Waagner: I think the record companies forced people’s reactions. Sometimes it seems to me that they’re just trying to shoot themselves in the foot, [trying to] self-inflict the injury to make it worse than it really is, just to get more pity and to get more legislation, “See how bad we’re damaged?”

Like when they announced their figures were down again this year and just really complaining, and by how badly they’re handling the public relations of the whole situation.

Lessig: My organization, Creative Commons, has this license that [Brazilian musician and activist] Gilberto Gil has pushed us to create, which is called a mash license. A mash license says, “You’re allowed to take my content, you’re allowed to sample my content for creative purposes, even for commercial purposes you can sample my content — you can do that all without hiring a lawyer or talking to me ever. What you’re not allowed to do is take a verbatim copy of my content and distribute that.”

So when Gil got us to do that license, he wanted to release a bunch of his content under that license. Warner [Brothers Records, Gil’s label] said, “Absolutely not.” He said, “Why? What possible reason would there be? This would inspire a great new burst of creativity around my work.” [But the labels are] still stuck in this [mentality of], “We’ve got to control absolutely everything.”

Waagner: The thing that just keeps coming back is that the record industry had distribution pretty well put into a box. They controlled physical distribution — if you wanted to play the game, you had to get into [their] system.

But isn’t the central issue compensation — shouldn’t the Beatles make money from their compositions, shouldn’t Wilco make money from their records?

Lessig: Well, I’m a strong believer in copyright. And in my view, what copyright is is the right of the author to control what happens to his or her work. In my view, that means if Gilberto Gil says, “I want my work to be available for other people to build on top of even without paying me,” he should be allowed to do that. There shouldn’t be a record company that says to him, “No, we’re not going to let you do that.” I wouldn’t favor forcing artists to turn over their work, but I would favor allowing artists to be much more creative about the ways they distribute their work.

But how are bands supposed to get paid when content is given away?

Waagner: I’ve always looked at the Internet as a free broadcast license and a free printing press, and whatever you do with it is just empowering. From having run an independent label and spent 20 years trying to help bands get heard, get written about and get distributed, to all of the sudden have this opportunity to just do it was so empowering.

From there, helping spread the word — selling more records, selling more concert tickets, selling more T-shirts, [doing] the things that you can’t replicate online, the things you can’t replicate or swap, that’s really the concept.

What we did is, the band [Wilco] went from thousand seaters to selling out 3,000 [seat concert halls] to 5,000 [seat halls], and they went from selling 200,000 physical records to almost 500,000 physical records. So that’s the benefit of [the Internet]. I don’t think anybody hearing your music is a bad thing.

I’ve always felt that the record companies [could have] played the psychology of the MP3 a little smarter. [If they had] not been like, “Oh, my God!” — if they would have been like, “So what, it’s an MP3 — it sounds like crap, people have been listening to music for free forever and it’s not a threat,” instead of going into this horrible litigious mind-set .

Lessig: I go between thinking [the major record labels] were just stupid and thinking they were extremely smart. The stupid is exactly what you just said. The extremely smart is they realized, as you said before, that they had distribution in the box. . . . And the Internet was going to destroy that ability to control distribution. So they really needed to fight this new technology if they were going to preserve their old business model.

Now the point is, their old business model wasn’t better for the artists and it wasn’t better for consumers, it was better for [big record companies]. When people talk about alternatives [to that model], serious people are not talking about alternatives that make artists worse off and they’re not talking about alternatives that would make consumers worse off, they’re talking about alternatives that might make five companies worse off.

What are the alternatives that serious people are talking about?

Lessig: The closest alternative to the existing system are things like iTunes or the new [legal] Napster. And, of course, iTunes is better than where we were before, because it’s cheaper and it’s a really nice interface. But the problem with that model is that these are technologies that require digital-rights management — DRM — built into them. DRM is this overhead technology that will make it extremely hard to make music accessible on all sorts of different devices.

Some people then talk about another alternative, which is basically the way radio stations pay for music that they play regularly on the radio. It’s a simple method for counting what’s getting distributed so popular groups get paid more than less popular groups. That’s the way a market works, but it doesn’t require that you lock up the content in DRM — you just let the content flow and you monitor and you pay on the basis of that.

Waagner: [On an Internet chat group, someone] posted the math of [proposing], if they just did a compulsory license across 105 million households — if it was $5 a month, it would basically equal the equivalent of what the record companies sell, without any cost of physical goods or distribution, and it would just be pure profit that could then come into the industry and be spread out to the artists. [That’s] with everything [on P2P] being tracked, not via the big DRM system but with just a data tracking system.

Would the record industry ever go for that?

Lessig: No. [Laughter]

Does the average consumer understand that the legislation that will govern all these new technologies is being created right now?

Waagner: I don’t really see the general public being aware of it at all. I think people hear “copyright” and they hear “legislation” and they just turn off. . . .

Lessig: We have produced a generation of criminals and the response of the recording industry or Jack Valenti [head of the Motion Picture Association of America] is, “Let’s just increase the penalties to teach them not to be criminals,” and my response is, “Yeah, it’s terrible that we’ve produced a generation of criminals. Let’s find a way to make it so that they’re not criminals, mainly by changing the law.” . . .

This set of laws was written for a totally different time, for a totally different technology, and every time in the past, when technology has changed, the law has updated to take account for new technology — until the Internet. Now the Internet comes along and they reinforce the old method of distribution and old business model because they’re extraordinarily powerful lobbyists.

Waagner: It’s penalizing a kid’s curiosity about music. I think the opportunity to find music, and not at the expense of going and buying import records at $20 a pop to discover that you don’t like 70 percent of them is probably a lot healthier for the industry as a whole. But then parents are caught in this paradigm of, “Oh, my God, is my kid breaking the law in his room?” I always kind of joke [that parents are thinking], “Oh, thank God, I thought he was surfing porn, but he’s only stealing music!”

And the parental reaction to these RIAA lawsuits seems to be, “OK, you’re grounded, but you don’t deserve to go to jail or be fined $5,000.”

Lessig: In [my] book that’s coming out [“Free Culture”], I tell the story of one of these kids, one of the four [college] students sued by the RIAA.

Jesse Jordan, who’s at Rensselaer Polytechnic Institute, built a search engine — kind of like a Google device, that sat on the RPI network and scoured the RPI network for all files in the public directories. [The program] put together a list of a million files; three-quarters of those files had nothing to do with music. He was not selling access, he was not making any money, he was just tinkering with technology on the network that he was at school with.

[The RIAA] came in and said he was guilty of willful copyright infringement, they filed a lawsuit against him which claimed damages of between $10 million and $15 million. [The RIAA then offered to settle for $12,000.]

So, he’s faced with this your-money-or-your-life option, and what does he do? What any rational person would do, turned over all his money.

Now, the point is, they then used this as evidence of how they’re advancing the great morality of defending the record companies, but I think that is deeply immoral, what they did. This is scapegoat-ism against the weak. They don’t go suing Google or Yahoo, they pick the weakest people to set a precedent.

And innovation itself is stifled in this atmosphere.

Lessig: Our tradition forever, especially in music, or even outside music, has been [that] creators have been able to build upon the culture around them and that came before them. All of Disney’s great work is built upon stuff that was in the public domain.

But what we’ve done under the law is eliminate the possibility of the public domain. Copyrights don’t expire anymore. The average copyright term when Disney produced his work was 30 years. The average term now is 100 years.

What about P2P or content sharing in general — it’s not just music on those networks anymore, it’s TV shows and movies. Is this discussion moot because it’s too late to control any of that?

Waagner: I don’t know. If people are given an opportunity to abide by the rules. . . . I don’t think anyone would feel infringed upon if their cable bill went up $5 a month and they felt that they could legally go online and watch movies and listen to music. I think that would be a solution that would create revenue.

I really think that the longer the media companies fight to try to contain it, and fight with the people that they ultimately need to support them, I think it’s a can’t-win situation.

Lessig: I agree. There will always be kids who are able to get access to whatever content they want. If you think the objective is, “How are we going to stop that?” you’re never going to stop that.

But I think the real problem is that the war against alternative ways of producing and distributing content means that nobody can go into a business that builds upon these alternative ways. You can’t stop the kids, but you can stop the investors and you can stop the businesses. And you’ll only get something amazing and new if businesses are allowed to innovate and build on top of these alternatives.

Waagner: I made the comment once that [the RIAA battles are] kind of like the railroad industry trying to shoot down airplanes. They’re just so freaked out by the competition that they’ll do anything — they don’t care if what they’re doing is moral or right. Not that they ever have, but [now] it’s just an “at all costs” battle…..

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