Lessig Blog Archives

David Wallace-Wells has a very long review of the great Lewis Hyde’s new book, Common as Air, at The Nation. The point of his 6,000 words is to convince you that Hyde, like other “free culture warriors,” is engaged in a project to “exhort[ others] to piracy and the plundering of culture.”

As a “free culture warrior” myself, I was a bit surprised to learn that I was in the business of “exhort[ing others] to piracy.” After all, my book Free Culture (2004) explicitly condemns so-called “piracy” almost a dozen times. I repeat that condemnation again and again in Remix (2008). And so I dove with eagerness into Wallace-Wells’ review, to see whether I had in fact made a mistake. Would The Nation finally erase my false consciousness? Was I now, and had I always been, a pirate?

It didn’t take much reading, however, to unearth the fallacy at the core of Wallace-Wells’ world: characterizing (while simplifying) Jaron Lanier’s work, Wallace-Wells refers to an “open-source imperative to piracy.”

Readers of my work will, with that single phrase, recognize the error in Wallace-Wells’ ways: for his target is an oxymoron. There could be no “open-source imperative to piracy” since “open-source” is a practice that rests explicitly upon a respect for copyright.

“Open-source” software, like Free Software, and much of what I refer to as “free culture” is creative work that is protected by a copyright license. Like any copyright license, these open source or free culture copyright licenses impose certain requirements on people who would use creative work in a manner that triggers the application of copyright law. They all depend upon the copyright system to function in the way that their copyright owners desire. They are expressions of the will of a creator within a system that respects copyright. There could therefore be no conflict between “copyright” and anything remotely attached to “open source” culture. “Open source” culture celebrates one of the freedoms to choose that the system of copyright gives us.

So called “piracy,” by contrast, is a denial of a choice by a copyright owner. It says to the creator, “I don’t care what you want. I am taking what you have created.” It doesn’t respect the freedom that copyright law gives to the creator. It denies that the law should secure to the creator any such freedom to choose. The only relevant choice in pirate culture is the choice of the pirate to take. Not the choice of the creator to make her work available.

I understand the motivations of at least some of these so called “pirates.” Some are political. Some are simply selfish. But whatever complex set of justifications stands behind their actions, their actions have nothing to do with the “open source” or free culture ethic. What is distinctive about that ethic is that they enable creators to exercise a choice. They don’t try to justify the choice of consumers to take from a creator what she doesn’t offer.

Of course, the creator doesn’t, and shouldn’t, have the power to restrict access to her work beyond the limits of copyright. Thus of course, “free culture warriors” celebrate the rights of “fair use,” which are express limits on the scope of the copyright monopoly. But to celebrate limits is not to deny the legitimacy of the control permitted within those limits. I celebrate the moment a work enters the public domain. That doesn’t mean I deny the legitimacy of a period during which the work is under the protection of copyright.

Maybe, however, Wallace-Wells’ real concern is that by giving away some of the rights protected by copyright, creators would therefore encourage piracy. Maybe the concern is that being soft on rights is just the first step down a slippery slope to ignoring all rights.

But why would anyone believe that? Do public parks encourage trespassing? Does Bill Gates giving away more than $20 billion to charity encourage communism?

The idea betrays a sloppiness of thinking that has animated dozens of self-righteous “defenders” of the copyright system. The free choice of copyright owners to waive some portion of their copyright is not a rejection of copyright. It is instead — as even the great (and sadly late) Jack Valenti recognized when he endorsed the Creative Commons project — an expression of the freedoms guaranteed by copyright: The freedom, as any property system rightly secures, of the property owner to deploy her property as she sees fit.

That choice is not “piracy.” And in 2010, to suggest that it is betrays not just sloppy thinking. It betrays an extraordinary ignorance. This terrain has been plowed a hundred times in the past decade. It would take anyone keen to understand before they blathered on exactly 10 minutes to find any number of essays that have pointed to this error precisely. (Indeed, Hyde makes the point himself when he discusses both the GPL (p220) and Creative Commons (p244).) Yet here again is a defender of the sanctity of authors who refuses to read what other authors have written.

I’m all for protecting authors’ rights. But I think the most important thing to protect is respect for what has been written. Reading is the first step to that respect. Reading is what Wallace-Wells has not done well.

Many of my friends have been puzzled that I have not been a strong critic of the Tea Party. Indeed, quite the opposite, I stand as a critical admirer. That means that while I don’t share most of the substantive ends of many in that movement, and I strongly object to the extremism of some, I am a genuine admirer of the urge to reform that is at the heart of the grassroots part of this, perhaps the most important political movement in the current political context.

My admiration for this movement grew yesterday, as at least the Patriots flavor of the Tea Party movement announced its first fight with (at least some) Republicans. The Tea Party Patriots have called for a GOP moratorium on “earmarks.” Key Republican Leaders (including Senator Jim DeMint and Congressman John Boehner) intend to introduce a resolution to support such a moratorium in their caucus. But many Republicans in both the House and Senate have opposed a moratorium. Earmarks, they insist, are only a small part of the federal budget. Abolishing them would be symbolic at best.

This disagreement has thus set up the first major fight of principle for the Tea Party. As leaders in the Tea Party Patriots described in an email to supporters,

For two years we have told the media and the rest of the country that we are nonpartisan and that we intend to hold all lawmakers to a higher standard.

This, they insist, is their first chance for that stand with the new Republican Congress. And the Tea Party Patriots have now mobilized their list to pressure Republicans to support this first and critical reform in the new Congress.

The Tea Party is right to push to abolish earmarks from Congress, and the defenders of the status quo are either deceivers, or just plain dumb. It is true that the total spending affected by earmarks is tiny. But by the same logic, one might as well observe that the bribes paid to Congressman Randy “Duke” Cunningham (Republican) and William J. Jefferson (Democrat) were tiny as well. Is that a reason not to prosecute those Members for taking them?

Earmarks are not bribes. But they are an essential element in the corruption that is Congress today. As Washington Post reporter Robert Kaiser describes in his fantastic book, So Damn Much Money, they have become the key to an incredible economy of influence that effectively enables lobbyists to auction too many policy decisions to the highest special interest bidder. That economy won’t change simply by eliminating earmarks. But eliminating earmarks is an essential first step to starving this Republic-destroying beast.

A government in which access can be bought, and influence paid for is not the Republic our Framers intended. They wanted a Congress “dependent,” as Federalist #52 puts it, “upon the People alone.” But through both Democratic and Republican administrations, Congress has evolved to become “dependent” not upon “the People,” but upon “the Funders.” Earmarks are a critical element in that dependency. And if we’re going to end government captured by an elite, we have to end that dependency.

This fight is just the first in a series that this more principled wing of the Tea Party movement can expect. For the truth is that not everyone on the Right shares their passion for ending the corruption that now rules Congress. During the rise of the GOP in the 1990s, some of the rights suggested that it was just “socialist” to question the power of the rich to buy influence over our government. The ideals of the free market, these GOP leaders insisted, should include a free market to buy government policy.

That idea is heresy to anyone standing in the tradition of Adam Smith, Friedrich von Hayek, Milton Friedman and Ronald Reagan. (Friedman, for example, insisted on a free market within the rules set by the government; he didn’t believe in a free market for those rules.) Yet that idea governs too much of both the Republican and Democratic parties of the past 20 years. It is an important and valuable development for the Republic that a powerful and passionate political movement on the Right makes ending this free market in government influence a core plank in its platform.

But if the Tea Party is really to be “nonpartisan,” then it needs to stop limiting itself to speaking to Republicans alone. Important Democrats share at least some of their reform ideals, including otherwise liberal Democrats, such as Congresswoman Jackie Spear (D-CA). The movement should rally Members from both the Right and the Left for any reform that is right (as in correct). The Tea Party Patriots’ reform to abolish earmarks is plainly that.

Now, of course, I have no illusion that my admiration for the Tea Party can be returned. A movement against “elites” is not likely to listen to a Yale educated Harvard Professor. But if that movement is to be as central to the restoration of the American Republic as its most passionate supporters believe, then it needs to recognize that while we don’t share common ends, we do face a common enemy. Special-interest-government is anathema to both the true Right and the limping Left. Progress would be to work together to end it.

Last week, I spoke on a panel at Vimeo’s Festival+Awards. The title of the panel was “Know your digital rights.” Paul Miller, aka, DJ Spooky, was the other panelist. Vimeo’s General Counsel, Michael Chea, was the moderator.

I had been invited to the conference because I was a judge in a contest that Vimeo had held. My job, with a handful of other judges, was to select the best “remix” video. More than 50 remix videos were finalists in the contest. We had a tough time finding the very best. That experience had set the frame for my talk. The subject I was addressing was this kind of remix creativity.

“Remix,” in the sense the competition intended, means a creative work that builds upon the creative work of others. That doesn’t mean simply grabbing or using the work of others. It means using the work of others in a way that is transformative, or critical. The rules of the competition expressly required that every entry “recombine and modif[y] existing digital works to create a new transformative work.” The recombined or modified work must, the rules specified, be either original with the remixer, in the public domain, or “created under the protection of fair use.” Every entry that I reviewed had a strong, almost certain argument that it satisfied the requirements of “fair use.”

“Fair use” is the term that copyright law uses to refer to one creator’s use of another creator’s work that, though technically triggering copyright law, does not need the permission of the other creator. If you review a book that I’ve written, you are allowed to quote from the book without asking for permission from me. Even though your quote copies my work, and that copying triggers copyright law, the law of “fair use” says you can use that quote without getting permission from me — indeed, even if I tell you that you don’t have permission from me.

“Fair use” has been a part of copyright law in America since the beginning. It is an essential part of copyright’s bargain, and indeed, as the Supreme Court held in Eldred v. Ashcroft, a part required by the First Amendment. Whole genres of art and creativity and expression have been built upon the freedom that “fair use” assures. And even the most vigorous defenders of copyright recognize the critical importance of “fair use” to our copyright system. Viacom, for example, which routinely orders YouTube to remove pirated copies of its television shows also routinely ignores cases where the uploader has “remixed” the original content. Though a strong believer in copyright, Viacom is also a strong supporter of (especially amateur) creativity, by recognizing and respecting this effective right of “fair use.”

Paul and I were asked to open the panel with a 5 to 10 minute comment. My comments produced a twitter firestorm. “Lessig essentially calls for en-masse © infringement. He’s an imbecile,” wrote @johnhharrington. “Moron,” @wizwow wrote, as he waged a campaign to “keep the pressure on,” put it to @laurabergerol. @laurabergerol went on such a rant she had to apologize to her followers: but “it is terribly important 2 photographers and artists,” she wrote, “he is advocating widespread infringement!” Debra Weiss, who styles herself a “Creative Consultant,” wrote on her Facebook page: “I think there should be widespread demands placed upon Harvard to fire him….” (The extremism in the attacks did inspire some very funny satire in response: @gnat wrote: “I hear @lessig is a baby-eating zombie who won’t rest until he’s emptied his bladder on the smoldering ruins of America’s greatness.” @AlanDeSmet: “Sure, @lessig is charismatic and smart, but then he calls for widespread cannibalism and baby punching.”)

I tried to make four points in the few minutes given to me by the organizers.

First, I urged creators of remix to make much more of it. Like others, I believe this form of creativity is vibrant and important. It should be practiced and critiqued in a much wider context. Kids learn how to write “creative writing” essays, quoting from a range of sources to make their point. They should learn how to make remixed videos, quoting and integrating the work of others to make their point. As with good writing, good remixing is hard. As with writing, there are important rules and norms the creator must learn. But as with writing, this is a form of expression that should be spread broadly in our culture — especially because most kids spend so much of their time watching rather than reading.

Second, I said that we needed to develop better norms to govern remix creativity. Obviously, professional filmmakers since the beginning of film have incorporated the film work of others in their film (or if not from the beginning, it would be really cool to know who was the first). But the norm that developed among filmmakers was to ask for permission first. That norm, I believe, makes no sense in the current context of remix creativity. Just as your teenager doesn’t send an email to the Ernest Hemingway estate before using a quote from The Sun Also Rises in a creative writing essay, it doesn’t make sense for her to send an email to George Lucas asking to include a clip from Star Wars in her remix about the character of rebels in film. A requirement of permission first is a certain way to kill amateur creativity. And that’s precisely why the doctrine of “fair use” exempts the creator from asking first.

But even if permission isn’t required, I do believe attribution should be. Not legally, but morally. Too often, in my view, remix creators feel that “fair use” means no obligation to be decent. I don’t believe that. I believe that if someone uses someone else’s work, even if the law says that use is “fair,” the remix creator should acknowledge the work she remixes, by giving attribution somewhere in the work.

Third, I argued that the remix creator needs to be recognized as a creator — meaning, that creator needs to be assured she can keep the rights to her creativity. Too often, remix platforms require the remixer to assign all her rights to the platform owner. Lucas Film did this with a site it set up for Star Wars. I think this is wrong: Obviously the remixer has no rights to the underlying work he remixes. But his creativity needs to be recognized as his creativity. Sharecropping makes no sense here, or anywhere.

Finally, I suggested that remixers signal to others the freedom that they themselves have practiced. Artists such as GirlTalk, for example, who builds upon the work of others are quite disciplined about releasing their work under a license that allows others to at least share the work non-commercially. It’s not my job to tell artists to give away their rights. But I do believe that those who create by building upon the work of others need to remember the Golden Rule as they create — and signal it.

All this in about 10 minutes. None of it, I thought when I finished, anyone should have any reason to disagree with.

The inferno was ignited after the talk when a reporter covering the panel quoted the language I used in point 2, without making clear the context within which I was speaking. I was quoted to say:

[Y]ou have the right to take it and use it.

When you use someone else’s work, you give them credit. We need to stand up and acknowledge what we’re doing, give people credit, and thank them, but not ask permission.

We have to respect the people whose art we build upon. But we don’t respect them in the old fashioned way, by having our lawyer call their lawyer. Respect in the 21st century is acknowledgment.

To anyone who cares about copyright, and especially to anyone who is angry about the extraordinary amount of piracy that increasingly rules digital space, I can well understand how these sentences, ripped from their context and their intended meaning, could anger. If you understand “take it and use it” to mean take whole copies (what others call “piracy”), rather than what everyone in the audience heard, take in order to remix, then indeed it does sound as if I’m “advocating widespread infringement.” And it would indeed be outrageous that a professor of law would be advocating infringement.

But I am not now, nor have I ever been, a supporter of “piracy.” In both of my most recent books, Remix and Free Culture, I repeatedly insist that people not use digital technologies to violate the rights of others. I repeatedly say that I oppose peer-to-peer piracy, or any other use that violates other peoples’ rights. No doubt, I have a series of policy proposals about how I believe copyright law should be updated to the 21st century. But in the mean time, I am quite explicit: don’t violate other people’s copyrights.

Instead, my statement “take it and use it” meant to take it and use it in the context of remix creativity, consistent with the requirements of remix creativity, meaning consistent with the requirement that the use be fair use. Indeed, during the panel, I expressly stated that some uses that I had seen elsewhere were not fair uses. And I described examples that would be easier to justify and examples that are hard. My claim was not that any taking was a fair taking. And my argument was certainly not that people ought to engage in “widespread infringement.”

In the end, this is not so much a story about copyright as it is a story about the Internet. I didn’t give the talk I gave on national television, or even, on the Internet. I gave it to 150 souls who had shown up at a conference about film. The vast majority of the audience knew more about remix creativity than I did. And our conversation took a lot for granted. Vimeo’s General Counsel was not going to host a panel calling for “widespread infringement.” And indeed, at one point when Paul Miller did say something that sounded close to encouraging civil disobedience, I expressly interjected: “That was Paul who said that, not I.”

But because everything is filmed today, and everything filmed must be made available to the Net, the talk sans context floats about the net. And articles which presume the context float about the net as well.

And when flotsam crosses the path of someone from a different context, focused on different issues, it sometimes produces a bizarre memetic moment. What was benign when uttered sounds insane when heard. The tame becomes the radical.

There are a million examples of this. It is its own genre in email. But somehow, as a culture, we, or maybe just we who are old, have forgotten how to deal with stuff we can’t believe. The rhythm of FOX/MSNBC makes us think the outrageous must be true, because it is outrageous! Nothing sane, or boring, is uttered by anyone anymore. Why would they? Why would they waste their time?

All of us (me included) need to learn better how to handle these moments of disconnect. (As the conflagration grew, and I had no chance to respond comprehensively, I struggled to think of witty and playful ways to tweet the suggestion that the outraged were missing the point. Most of those were fun. Two crossed the line, and I deleted them.)

We need an anti-moron norm: If something sounds crazy, assume its not. Assume you’ve missed something, and check again. If after reading and trying to understand the issue and the person more, you still think its crazy, go slow. Go moderately. Turn the Net into the anti-FOX/MSNBC. Explaining interesting ideas in 140 characters is hard enough. “Moron” and “Imbecile” take lots of space.

And finally, we need to apologize generously and graciously. Early in the storm, some of the critics had read bits in the article written by the journalist as written by me. Someone pointed out to @wizwow, perhaps the most vocal of the critics that it wasn’t my writing he was criticizing. @wizwow then wrote: “Mea Culpa: I misquoted Lessig on the PDN article. Missed the change to Miller in the copy. Apologies for misquote. I only want truth.”

Now there is a reason for hope.

Five-year old Felix’s mom, Kierstin, sent me this image a bit ago. “I thought you would get a laugh out of these photos where your Remix became a crucial supporting wall for a Medieval Castle, manned by Playmobile guards and a plastic dinosaur.” Indeed.

Dave Wiley has an interesting idea he calls unmixing (in contrast to remixing), which he demonstrates with the first bit of REMIX. Basically, using Yahoo’s BOSS, he reassociates every three words to another text on the web. Give it a look. (I think I’d call it re-remixing).

So you’re likely not to recognize the term — in all caps, PACER — but if you do, the amazing sorts at the Stanford Law Library are trying hard to organize attention to getting this essential service radically improved. You can help here.

Code v2 in Chinese.