Lessig's Razor

Lessig's Razor

Summary: Creative Commons founder Lawrence Lessig made an interesting and revealing comment at the D Conference.

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TOPICS: IT Employment
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Richard Sarnoff and Lawrence LessigAlas, I cannot be at D, but I can follow it on Dan Farber's blog and at The Wall Street Journal blog. The session featuring Random House' Richard Sarnoff and Lawrence Lessig provides a candid picture of the difference of opinion about the meaning and value of copyright. Lessig, a lawyer, is reported to have lambasted Sarnoff for "unleashing" Random House's lawyers to "suck value out of [the information] economy." Predictably, because it's easy Sorry, Medieval times don't appeal to me. to dislike lawyers (and because, as a lawyer, Lessig sounds noble making this statement) he got riotous applause.

But I think it's a little too easy to applaud lawyers complaining about lawyers when the problem is a question of, as Lessig said, "the digital destiny of American culture or world history” The lawyers are the sideshow, the problem is how to pay for the culture Mr. Lessig wants to preserve, and lawyers aren't the experts I'd rely on for culture. After all, with rare exceptions, lawyers don't produce writing or video or music that anyone would want to read, see or hear except to pass a test.

The big question is how artists, writers, performers and others who dedicate themselves to creative work and make no living from a "day job" are going to get paid. This doesn't mean one has to be a "paid professional" to be a writer or artist or filmmaker, only that if one does choose to make their living that way, they need to put food on the table just like anyone else. And, if they produce a great work or monstrous hit, why shouldn't they live in a big house and eat caviar from the belly buttons of their favored gender or contribute their fortunes to charity and schools for the art, should they so choose? After all, it's only fair given the nature of the economy that someone who bets everything on their creativity should get paid when they make something people want, enjoy or participate in with zest.

Lessig went well beyond questions of fair use to say, literally, that any work should be freely copyable in digital form, presumably because, following the logic of the "friction-free economy," there's no cost for reproduction. He replied to Sarnoff's argument that Random House, having invested in the creation and marketing of a book should be able to prevent unrestrained copying of the work in order to recoup their investment and, yes, make a profit: “You are publishers of printed versions of books. Why should you be controlling the digital destiny of American culture or world history?”

Apparently, Lessig believes publishing is only about production. If the publisher has paid an advance for a work or, in the case of a magazine, paid for an article to be researched for a year, don't they have some right to recover that money? Doesn't the author or filmmaker who spends two or three years of their lives on a project deserve to make enough money to cover the cost of the project, if it attracts an audience? (I'm assuming, for argument's sake, we're talking about profitable works—most art has a success rate about the same as small business, 90 percent fail and lose money.) It's very easy to say that culture must be free, but it costs money. Unfortunately, most artists don't have the money to undertake their passion and, if they can get an advance from a publisher that's the way to kick-start a career. It also helps to have the publisher (or film distributor) spending gobs of money promoting the work.

If people can afford to create and give away their work, great. More power to them. The rest of us, especially those artists who really press the boundaries to make something that defies contemporary taste and succeeds in redefining their era, deserve to profit as much as a laborer building a home, the architect who designed the house, or the company that finances the home you live in.

Could we distribute value differently, more fairly? Sure, but in an economy that rewards individual and corporate ingenuity with revenue, it's ridiculous to argue that the pages of a book are where the value of the ideas in the book resides. Just because a digital copy of a work is available doesn't mean all value has drained from it. Could we find better distribution models that supported more adventurous works? Sure, but not if we deny that value resides in the work, insisting value is created solely through reproduction.

Intellectual work—whether writing, lawyering, teaching, performing, drawing, editing, filming, etc.—should pay or else we leave culture to be paid for by a few princes of the physical and digital economy who will subsidize what they like, while the rest of the world lives with their cultural choices. Sorry, Medieval times don't appeal to me. 

Granted, we have new technology that changes the economics of distribution and need to adjust some of the systems we have for collecting fees and paying contributors to culture. Lessig's stretched the boundaries of a constructive debate to make unrestrained reproduction the issue, at least as the conversation at D was portrayed. That's silly on the face of it. The Creative Commons needs to side with creators who want to profit, too, if it wants to find the path that makes culture as rich as our world deserves. That means Lessig has to do something lawyers often hate to, compromise.

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16 comments
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  • Straw man

    Never mind Lessig (although, to be fair, he's the author of several books himself and quite worth reading.) The position you ascribe to him -- that of essentially ditching copyright for digital works -- is a strawman. It's the same false dichotomy that Random House presents: that the only choices facing us are between the death of copyright with attendant starving artists vs. extending copyright dramatically beyond its historical high-water limits.

    How about losing the rhetorical exaggerations and logical fallacies and actually discussing reasonable approaches that benefit everyone?

    You'd be far better addressing [url=http://www.baen.com/library/palaver.htm]Eric Flint and James Baen[/url], who make their livings exclusively by writing and publishing books respectively.
    Yagotta B. Kidding
    • I have to admit...

      I like the way Baen Books treats its' customers. I had downloaded two books from their free library: "Sympathy for the Devil" and "The Warslayer", and now I'm dying to buy the paperback versions. What the free library does is give potential customers the chance to really judge the value of their content, and if they like it, they'll buy that book or subscribe to Baen. It's a win/win for both writers and book readers, much like how it is on Magnatune or eMusic.

      Thanks Yagotta!
      Tony Agudo
      • It's a great model if you can afford it....

        but as I said, the cost of creating works doesn't always allow for
        free sampling. Artists build reputations or win support from
        backers who help them to achieve the kind of financial security
        that allows no-risk publishing models.

        It's great to see these new models become available, but they
        supplement, not replace, the existing ones. Creative Commons
        has not suggested viable commercial models that support
        expensive productions. I admire Pearl Jam for making their video
        available under a CC license before they sell it, but they can
        afford to do it. A new band might achieve fame by giving away
        their video, but it's not going to have the same production
        values. A writer looking at five years of research before they can
        produce a book, such as Shelby Foote's Civil War trilogy, can't do
        this under the Baen model. It would be great if writers could
        <b>propose</b> books and get enough pre-purchases to
        support it?yet that doesn't quite fit the read-it-first-then-buy-
        if-you-like-it. Publishers, for all their faults, can demonstrate a
        lot of patience with their investments.
        Mitch Ratcliffe
        • Theory and Reality

          [i]A writer looking at five years of research before they can produce a book, such as Shelby Foote's Civil War trilogy, can't do this under the Baen model.[/i]

          You say that as though you have more than speculation to back it up.

          Once again, I'll point out the cold hard fact that Baen [i]is making money[/i]. Quite a bit of it. Audited by accountants. [b]Facts[/b].

          In contrast, I keep hearing a lot of speculation.

          In theory, there is no difference between theory and reality.
          Yagotta B. Kidding
          • Fact: Foote lived on Random House's advance for years

            Yagotta, I'm not speculating about Shelby Foote, nor is it the
            case that most books are written first and then paid for.
            Advances play a huge role in the funding of cultural works. I
            don't know why you insist on ignoring the facts of publishing
            history.

            I'm not saying Baen is wrong, only that it isn't the magic band-
            aid to fix this problem. I suggested, as you asked, a way to
            finance works speculatively, but you didn't respond to it. If you
            don't think it is viable that an author could collect enough up
            front to fund the research of an expensive work, such as a Civil
            War trilogy, then say so. And, if you admit that, you should at
            least acknowledge the issue you claim is simply solved by the
            examples of Baen and Flint is quite a Gordian knot.
            Mitch Ratcliffe
          • Models, theory, and experiment

            [i]Yagotta, I'm not speculating about Shelby Foote[/i]

            Of course you are. Your sentence was, "A writer looking at five years of research before they can produce a book, such as Shelby Foote's Civil War trilogy, can't do this under the Baen model."

            Your sentence is postulating the consequences of a predicate contrary to fact (that SF tried to publish for Baen.) The fact that you are arguing as though the experiment had actually been tried and come out as your theory predicts is [b]exactly[/b] what I'm on about.

            Foote didn't try. You can't cite the results of an alternate reality as proving your point.

            [i]Advances play a huge role in the funding of cultural works. I don't know why you insist on ignoring the facts of publishing history.[/i]

            And I don't know where this came from at all. Apparently you didn't read the references I provided.

            Item: Baen Books pays royalties. I have friends who are eating and paying the rent from them right now while writing still more works to be published by Baen.

            [i]I'm not saying Baen is wrong, only that it isn't the magic band-aid to fix this problem.[/i]

            I would hope you aren't saying Baen is wrong since you evidently haven't bothered to find out what Baen is saying.

            Look, this may be about ideology for some. Maybe for you. For me, it's about doing reality checks.

            Baen has facts. I'm an engineer, I'm conditioned to treat facts with respect. Sometimes I even let a fact cause me to doubt a theory. Perhaps that attitude doesn't belong in the land of Cultural Correctness or Political Orthodoxy.

            If so, sorry for crashing the party.
            Yagotta B. Kidding
          • Amendment

            s/[i]Item: Baen Books pays royalties.[/i]/[i]Item: Baen Books pays advances.[/i]/

            Mistyped. Please respond to the above as though I hadn't fumble-posted.
            Yagotta B. Kidding
    • Lessig said it...

      Yagotta, Lessig said what he said. I think he's made progress
      toward improved handling of artists' rights, but he's reaching for
      extremes when he makes statements like he did today.

      I am not talking about starving artists, but practical realities. He
      has placed himself at the head of the parade, so he needs to be
      responded to, and I'll be happy to address Flint and Baen as well.
      Please keep in mind, however, that I do know what I'm talking
      about when we talk about writing and working with publishers,
      as it's how I have made my living, too. I think I'm in a position to
      speak about Mr. Lessig's opinions about the dysfunctional
      system. I fully support fair use and fight extending copyright,
      but I don't agree that simply because a work can be copied
      digitally that it no longer has value the creator should be
      compensated for.
      Mitch Ratcliffe
  • Responding to amendment

    I've looked at the site and see no evidence of advances being
    paid, rather they seem to pay on acceptance, which is very
    different.

    The question, if they pay advances rather than on acceptance, is
    whether Baen pays significant advances, enough to support
    multi-year research. The subscription model may facilitate that
    eventually, but the genre of books they publish isn't really in line
    with the question itself.

    Also, note that at least one author has raised serious questions
    about their relationship with Baen, according to Wikipedia. Not
    everyone is happy, which is not to say the model is bad or that
    Baen shouldn't succeed, just the fact that it doesn't always work
    for authors.
    Mitch Ratcliffe
    • You'd have to ask some of the authors

      [i]I've looked at the site and see no evidence of advances being paid, rather they seem to pay on acceptance, which is very different.[/i]

      As usual, advances are privately negotiated. I know they pay reasonable ones due, as noted above, to having friends working on advance from Baen.

      Details, of course, are negotiable.

      [i]The question, if they pay advances rather than on acceptance, is whether Baen pays significant advances, enough to support multi-year research.The subscription model may facilitate that eventually, but the genre of books they publish isn't really in line with the question itself. [/i]

      No, they're not big on nonfiction. Obviously.

      However, I doubt that we can draw any sweeping conclusions from Baen, other than that some popular theories regarding publishing, economics, and the Internet have serious problems.

      [i]Also, note that at least one author has raised serious questions about their relationship with Baen, according to Wikipedia.[/i]

      Yup -- the (unnamed) author didn't like the electronic-publications clause. Given that Baen appears to be asserting it retroactively, I suspect that Baen is on very shaky legal ground in light of the [i]New York Times[/i] case.

      Ce la vie. The day that authors always agree with editors and publishers I'll start shopping for pet lions and lambs.

      [i]Not everyone is happy, which is not to say the model is bad or that Baen shouldn't succeed, just the fact that it doesn't always work for authors.[/i]

      I didn't get that message -- more that the author didn't want to try it in the first place. I'm not enough of a Barfly to know the story in any more detail, and you could be reading it correctly.
      Yagotta B. Kidding
      • Agreed, no sweeping generalizations are needed

        Yagotta, okay I'd need to have contact information to verify that,
        but you had pointed at the site and said that it says they pay
        advances, but it doesn't. That said, I absolutely agree that we
        can't come to some sweeping conclusions based on the evidence
        of Baen, Flint and Brazil's music scene?anymore than we can
        conclude that because publishers have had successful
        businesses in the past that they can assert new rights in the
        digital era. I'm looking at the gap between these examples and
        figuring the answer is in there, in the form of a compromise
        rather than an absolutist position like Lessig articulated
        yesterday.
        Mitch Ratcliffe
  • Rot

    The arguments made in the article (artists/performers should be paid) were answered in 1786 with the adoption of the Constitution. The sole purpose of copyright should be to incent creativity, and that's what the Constitution says.

    Since then, all kinds of expansions have been made to copyright both in scope and duration.

    It's rediculous to assert that the 1998 CTEA was meant to incent creativity. It's rediculous to assert the DMCA is meant to incent creativity.

    After all, the CTEA extended the duration of copyright protection from life plus 50 years to life plus 70 years, as if royalties and control of your work [i]for an entire life[/i] is not incentive enough for some people.

    This article attempts the refute the the totally unjustified expansions of copyright by saying the only alternative is none at all. Bollocks.



    :)
    none none
    • I did?

      Alas, the article makes no effort to justify, let alone mentions,
      these laws, which the author agrees are ridiculous. It addresses
      Lawrence Lessig's extremist position as he stated it at the D
      Conference and suggests that in contemplating the new
      arrangements that may prevail account for the constructive role
      publishers can play.
      Mitch Ratcliffe
      • Your implied support...

        ...is nowhere revealed thanks to obfuscation any corporate lawyer would be proud of!
        wmlundine
  • Copyright Balance

    Both extremes keep coming to attention. I dare say not many people want to see payment to artists stopped by freely copying everything. On the other hand, I doubt that many people think it's fair for an author or artist to keep getting paid over and over again for the same work. Perform a creative work, receive reasonable pay for a reasonable time, and then perform another work and allow others to enjoy and make derivative works from the origina.

    In the current atmosphere it is no longer possible for a Walt Disney to arise in America. Much of his great work was derivative in nature and the extreme length of time now allowed for control makes that impossible.
    dlb@...
    • Copyright extensions to blame

      The extension of copyright renewals to 99 years means that only corporations and heirs will profit from a work. The original creator will be dead, and only the inheritors will then gather the profits.
      dmenke