Alas, 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.