Lessig: Five proposals for ending copyright wars

Lessig: Five proposals for ending copyright wars

Summary: The Wall Street Journal is running an excerpt from Larry Lessig's upcoming book, Remix (book party in SF, Oct. 29.

The Wall Street Journal is running an excerpt from Larry Lessig's upcoming book, Remix (book party in SF, Oct. 29.) In this excerpt, Lessig tells the story of Stephanie Lenz, who taped her infant child with some Prince song playing in the background and uploaded the video to YouTube, only to find a moment of her life deleted after Prince and Universal sent YouTube a DMCA take-down notice.

Lenz is "collateral damage" in the copyright wars, a war that is properly fought against piracy, Lessig argues, but is sweeping up innocent people who are just trying to create something new out of the stream of media that comes our way.

The extreme of regulation that copyright law has become makes it difficult, sometimes impossible, for a wide range of creativity that any free society -- if it thought about it for just a second -- would allow to exist, legally. In a state of "war," we can't be lax. We can't forgive infractions that might at a different time not even be noticed. Think "Eighty-year-old Grandma Manhandled by TSA Agents," and you're in the right frame for this war as well.

The return of this "remix" culture could drive extraordinary economic growth, if encouraged, and properly balanced. It could return our culture to a practice that has marked every culture in human history -- save a few in the developed world for much of the 20th century -- where many create as well as consume. And it could inspire a deeper, much more meaningful practice of learning for a generation that has no time to read a book, but spends scores of hours each week listening, or watching or creating, "media."

Yet our attention is not focused on these creators. It is focused instead upon "the pirates." We wage war against these "pirates"; we deploy extraordinary social and legal resources in the absolutely failed effort to get them to stop "sharing."

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.

Lessig offers these recommendations:
  • Deregulate amateur remix: "We need to restore a copyright law that leaves "amateur creativity" free from regulation."
  • Deregulate "the copy": "The law should ... give up its obsession with 'the copy,' and focus instead on uses -- like public distributions of copyrighted work -- that connect directly to the economic incentive copyright law was intended to foster."
  • Simplify: "When copyright law purports to regulate everyone with a computer, there is a special obligation to make sure this regulation is clear. ... Tax-code complexity regulating speech is a First Amendment nightmare."
  • Restore efficiency: "We should return to the system of our framers requiring at least that domestic copyright owners maintain their copyright after an automatic, 14-year initial term."
  • Decriminalize Gen-X: "We should sue not kids, but for peace, and build upon a host of proposals that would assure that artists get paid for their work, without trying to stop 'sharing.' "

Topics: Piracy, Enterprise Software, Security

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  • This article is right on track...

    Now if we can just get the lobbyists to leave Washington and get the Congress to repeal all the copyright acts passed since 1975.
  • Never Going To Happen

    The recent meltdown of Wall Street and the financial markets world wide pretty much is a good illustration of why copyright protection will only get more draconian and not less. Simply put it is unregulated greed. Possibly some gluttony involved as well.

    How much is a song created by someone like Prince worth?
    Well potentially hundreds of millions. This puts a lot of money into the hands of creators and where there is money, there is power.

    A creator is never going say something like, "I have more money than I will ever be able to spend in my life time, so why not allow others to play with my creations." They live in a different world. A world of 440,000 USD parties and 10,000 USD rounds of golf. They can never have enough money because their life style demands lavish spending. They are the new aristocracy.

    Unsatisfied with simply selling one copy of their media, why not charge for every back up copy and even double charge for the copy on an active harddrive and the copy it made into R.A.M.

    You might see some consternation among the various creators if they had to pay continuous royalties to the owners of "Devices that create electronic text" or "Devices that create audio signals with in Human hearing ranges".

    Eventually we may end up living in a world where Prince has to pay someone for the rights to even pick up a guitar and play a song live and we will have to pay for the rights to listen even if we don't want to.
    • It's worst than that.

      <<Eventually we may end up living in a world where Prince has to pay someone for the rights to even pick up a guitar and play a song live....>>

      Check out the legal action against John Fogerty (founder of Creedance Clearwater Revival, CCR) by Fantasy Records for the song "Old Man Down the Road." Fantasy sued because it sounded too much like Fogerty's vocals and guitar work on CCR's "Run Through the Jungle" which Fogerty wrote. An artist cannot perform original material because it might be mistaken for previous material the artist had written and performed.
      David Wilson
  • first you need accounting >Lessig: Five proposals for ending copyright wars

    almost a wishful argument being made. with due respect, first there
    was the fear that code would become law (Prof. Lessig's "Code is
    Law"), then that the term of a copyright is too long (Prof. Lessig
    argued Eldred v. Ashcroft before the Sup Ct.) & now somehow, "use",
    is to be regulated.

    along the way the "creative commons" was "deployed" as if copyright
    registration is too difficult as is. it has become clear that we are
    treating the issue by skirmishes that are around the edges of the
    discussion. first, why don't we define "value" in an objective sense so
    that we can account for it. we can borrow heavily on case law in
    patents, trademarks & copyright. the Sup Ct has certainly offered its
    opinions on these matter and how. and, our legislature has
    consistently made changes to law & statute with little or no public

    why don't we start by opening the books on all of the rights being
    paid & do a double entry accounting that assures proper attribution &
    payment to writers, creators, innovators. there is no lack of opinion
    just a lack of measured and consistent debate. for instance, while
    copyright is strengthened, patents are weakened. why? what does
    "remix" have to do with ensuring that America continues to lead in
    innovation, including the hard & basic sciences - it does no such

    no need to forego transparency, liquidity is coming along just fine
    now that we have a market for patents (call the entities doing the
    transactions & engaging in litigation what you will) - though the lack
    of understanding just what a patent constitutes is laughable &
    damaging to our economy.

    why not reverse the 1999 American Inventor's Protection Act (does not
    protect American inventor's & diverts Applicant fees to other non-
    patent operations of the government) & reverse the 1995 GATT WIPO
    harmonization limiting patent terms to 20 years as delays & turnover
    & mismanagement of the patent office by partisans & political-types is
    bad for our economic & technical leadership.

    all of our so-called issues arise at that point in time when the
    tampering began to make it easier for the rest of the world to
    ":borrow" our innovations at less-than-market costs. that is the real
    shame, not the fact that user-generated content, remixed or
    otherwise, bothers major content owners.
  • So I expect coherence...

    ...and wait for the free shareable copy of the
  • 100 points

    I totally agree. I don't care if anyone copies my work, unless they make money by using it. What's more, i don't even care if they make money, if they make me (or my work) popular in exchange by spreading it. And wow, this is why I choose an open source strategy for my software company. Copyleft works for some companies.

    And another one pops into my mind: when I was still at school, my friends (not me of course) copied all kind of softwarem, like MS Visual Studio. They learned it, the love it and now they work with it - naturally, as they started earning money with it, they bought the licence. I think this is good for MS, too. How could MS make profit from my developer friends ending up in jail?
    • Yeah this is the conflict

      In the case of MS it's pretty simple. Make their
      software for bona fide students dirt cheap to get
      mindshare. The problem is there will be piracy. A
      little bit it probably ok but if seems like they're
      not minding the store then the piracy will be
      widespread. But technological solutions like having
      you login with a student ID that gets verified every
      six months or so would deal with that.
  • No piracy without scale

    This is the first sensible proposal I've seen for dealing with fair use and piracy. It takes account of the most salient feature of digital media: no copy protection scheme can prevent piracy. Determined lawbreakers will find a way to make and distribute unprotected copies. Users seeking fair use will use the same technologies that the pirates use to make their own copies. The differences are scale and economic incentive. Amateur content producers do not expect payment for their efforts even if they reach a substantial audience. They should not be restricted from using copy-protected material provided it does not constitute the main appeal of the new piece.
  • Only ONE solution will work

    Copyright is not broken, the way in which it is applied is broken. The principles of copyright have withstood the test of time for more than 300 years. These principles are sound and fair and older than the U.S. Constitution. Copyright simply took a detour with the advent of digital media and the Internet. It will right itself. It became impractical (if not impossible) for people to comply with and for content owners to enforce. At iCopyright, we advocate ONE simple proposal, not five: make ALL content instantly licensable at the user's point-of-contact with the content. Whether the content is on the owner's site or an aggregator site, one should be able to obtain the rights to use it, share it, or mix it with a few clicks. Because experience shows that if that right is not present, or if it is not easy, people will simply cut-and-paste it anyway. The trick is to grant instant rights and permissions -- for free or for a fee depending upon how it will be used -- while giving the owner credit and a way to monetize those reuses. That's what we are focused on. It seems to be working, iCopyright processes more than 10,000 instant licenses to use/share/mix content every day.
  • Musicians Vs. Sculptors

    Imagine if Sculptors had the same benefits under Law of
    musicians today.

    You know, just like musicians, Sculptors also employ
    technical skills and creativity to produce Art.

    However, unlike Muscians, he does not get any money if
    its work is reproduced through photos, movies or even
    mock copies.

    In fact, a sculptor can only profit from his FIRST Art Sale.
    He does not get anything when its work is resold, copied,
    exibitted, etc... if a Sculptor ever wants to profit again
    from his idea/art, he has to take the time and work it out
    all over again. However, even in this case, his copy would
    never have the same value again.

    My proposal is that we should just ELIMINATE the copyright
    law. A musician should not make any money upon a
    Recorded music everytime it is copied but, rather, through
    the Shows and presentations derived from the
    ADVERTISEMENT proportioned by the reach of his songs
    throughout the Media.

    At least it would be a lot more fair.