Copyright in the Digital Age

Copyright in the Digital Age

Lawrence Lessig

Professor, Stanford Law School

Wednesday, April 14, 2004; 1:00 PM

Stanford Law School professor Lawrence Lessig was online to discuss his book, "Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity." In his book, Lessig argues that the entertainment industry conspires with Congress to use copyright law to destroy our traditional notion of freedom in culture.

washingtonpost.com reporter David McGuire moderated the discussion.

A transcript follows.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

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David McGuire: Dr. Lessig, thanks for joining us. In your new book: "Free

Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity," you argue that the debate over piracy has obscured a larger movement on the part of the media industry (movie, music and software

makers) to "remake the Internet, before it remakes them." How, practically, is that movement unfolding? Where are those battles being fought?

Lawrence Lessig: The content industry has done a good job convincing the world that the internet will enable what they call "piracy." That has obscured the fact that the internet will also enable an extraordinary potential for creativity. And it has obscured the fact that the weapons they use to eradicate "piracy" will also destroy the environment for this "creativity." They spray DDT to kill a gnat. We say: "Silent Spring."

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Bellingham, Wash.: What are your thoughts on the debate on anticircumvention regulations and how they may impact fair use? Do antipiracy concerns outweigh the importance of allowing legitimate uses of circumvention software (for example, by DVD owners making backup copies)?

Lawrence Lessig: The anticircumvention regulations of the DMCA have been interpreted in a way that does plainly restrict any sensible understanding of "fair use." They are therefore regulations that will be found, imho, to violate the constitution. As the Court indicated in Eldred, fair use has a constitutional basis. Congress is not free simply to remove it. Thus whether Congress -- "persuaded" by the content industry -- believes that antipiracy concerns outweigh the constitution or not, no law may outweigh the constitution.

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Washington, D.C.: You are on the board of the Electronic Frontier Foundation, which has recently volunteered to defend alleged copyright infringers that are being sued by copyright holders, the RIAA.

As a law professor and a copyright holder yourself (Free Culture book), do you feel that the RIAA has a legitimate gripe in protecting what property is legally belongs to them?

Would you support a foundation established to defend literary copyright suits, if professors were to crack down on student text book copying - or even worse, yours?

Lawrence Lessig: I believe that copyrights, properly defined and reasonably balanced, ought to be defended by copyright owners, and organizations (whether the RIAA or others) devoted to defending such rights. I'm sure everyone at the EFF believes the same. But just as a lawyer who defends someone charged with auto theft does not therefore support auto theft, so too with the EFF: They are, rightly, defending the rights of individuals that they believe, rightly, should not be prosecuted in this way under this law.

As a law professor -- and more importantly, as a citizen of the United States -- I absolutely support their actions. We here are supposed to believe in the right to a defense. We are supposed to believe that laws are not to be overreaching in their effect. We are supposed to oppose abuse of the power of prosecution. And I fundamentally oppose those who would question anyone who would defend rights that our constitution was designed to guarantee.

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Washington, D.C.: Good afternoon - Prof. Lessig, will you state once and for all that the widespread theft (or whatever term you wish to apply) of copyrighted works online is illegal? Can the conversation about copyrights in the digital age at least recognize this? Don't you feel that it is a dangerous society that believes that because the Internet lets you do something, it is permissible to do so...whether morally or legally right or wrong? I find that in all of your articulate presentations, you seem to blame the people who create and invest in the creation of music, movies etc. and place no blame on those who take those works without compensating the artists/copyright holders.

Lawrence Lessig: Great question. First, I have "recognized" this. Here's a great derivative work of my book -- permitted because I released my book free under a Creative Commons license. (http://trevor.typepad.com/blog/free_culture_lawrence_lessig_purple_numbers.

html) On that page, each paragraph of my book has been marked by its own url. As you'll see at paragraphs 84, 110, 367, 372, 377, 382, 388, 389, to mark a few. Or go to (http://free-culture.org) and download the book and look at the section "Why Hollywood is Right" beginning at 124.

But my whole point is that if we as a people can think about only one issue at a time, then we as a culture are doomed. For if we set our policy focused on one end only -- ending piracy -- then we will end a tradition of free culture as well.

Yet the content industry has done so well because they've convinced DC that there is really just one issue out there -- piracy. And they certainly are more successful than I in shaping this debate. So it may well be that we as a people can think about only one issue at a time. And again, if so, then we as a culture are doomed.

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Takoma Park, Md.: Is it fair to call pervasive free availability of any copyrighted song anyone can think of a "gnat"? I appreciate your concerns but it seems to me that you're downplaying the impact of file-sharing on creative industries.

Lawrence Lessig: Is it fair? Well, what's the harm. In my book, I assumed there was a substantial harm, and the question I asked is: how might we minimize the harm while not destroying the internet or its potential. So I would push for different policies even assuming the gnat is a lion.

But since my book was published, there has been substantial work -- by independent researchers, not paid by the content industry or anyone else -- to suggest that there is no substantial harm from p2p sharing. More precisely, that when you add up all the effects (people exposed to new content which they buy, etc.), the effect of sharing is statistically indistinguishable from zero.

Whether you buy that analysis or not -- and, I think we should remain skeptical about it until it has had a good chance for further peer review -- I do think that relative to what we lose by waging this war, the interests of one particular industry are small.

By this system of federal regulation, we are creating a regime of creativity where the only safe way to create is to ask permission first. You might think that's simple, but just try it someday. But I'm with those who think that there's something fundamentally wrong about this regime, whether it is simple or not. I as an academic don't need anyone's permission before I write an article criticizing someone else. But the same freedom is not accorded a filmmaker, or webmaster, under the rules as they exist today.

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Madrid, Spain: Do you really think there will be a unbreakable technology to protect CD, video or stop MP3 exchanges in the web? In others words, is it possible to protect intelectual property with a piece of software? Do you really think the technological measures will be effective?

Lawrence Lessig: By "do you really think" you make it sound as if I've suggested such a "solution." I have not. Indeed, I think all solutions that rely upon technology to control access suffer important and unavoidable costs. More importantly, an arms race around technologies for locking up and liberating content is a waste. We should push for a regime that helps assure artists get paid without simultaneously breaking the most valuable features of the internet.

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New Orleans, La.: Do you think that the Court's strict constructionist reading of the Copyright Clause in Eldred blows open the door to the continued and expanding success of special interests appropriating the public domain?

Lawrence Lessig: Yes, it absolutely does. By ignoring the original meaning of the constitution's text -- indeed, by ignoring even the text, for the Court does not even try to explain what the words "to promote the Progress of Science" means -- the Court has given Congress, and lobbyists, a green-light to continue what they have done so well over the past 40 years -- extend the term of existing copyrights. It is totally obvious that in 2018, there will be another bill to extend copyright terms. It is totally obvious that all the money in the world will be spent by those who have copyrights that are about to expire. And totally obvious that nothing (yet) in the Court's jurisprudence that would stop such an extension.

Now of course, there's lots that can, and must be done, independent of the Court. PublicKnowledge.org, for example, is doing a great deal of good to get Congress to consider reasonable balances in the field of copyright. They have, for example, taken up the challenge of getting congress to pass the Public Domain Enhancement Act, which would require a copyright owner, 50 years after a work has been published, to register the work and pay $1. If the owner pays the $1, he or she gets the benefit of whatever term Congress has set. If he or she does not, the work passes into the public domain. We know from historical data that more than 85% of copyrighted work would pass into the public domain after just 50 years under such a regime -- clearing away a mass of legal regulation governing the ability of people to reuse culture. But even this reasonable proposal is being resisted by, for example, the MPAA.

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Georgetown: Isn't the source of the problem in copyright law the extension of the copyright to derivative works? This aspect of copyright should be limited or eliminated after, say 50 years. That way Disney would be able keep selling its classics while the others would be able to use the work as the basis for new creations.

Have there been any such proposals in Congress?

Lawrence Lessig: This is a great suggestion. Yes, the one really radical way in which copyright law today differs from the copyright law our framers gave us is derivative rights: They didn't protect them, and we do. And that extension does, in my view, muddy many issues. I understand and support laws which control the ability of A to sell a verbatim copy of B's copyrighted work without B's permission. But whatever wrong that is, it is totally different from the "wrong" of building a work based on B's work. Our law does not adequately distinguish between the two, and it should. A shorter term might be one solution. I suggest others in my book. But it is plainly an area where serious reform could do serious good.

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Washington, D.C.: How is distributing copies of copyrighted works to a stranger without the authorization of the artist, as in P2P, not a violation of copyright? Do you not agree that an artist's ability to copyright his work, if he chooses to, creates incentives for that artist to innovate and create? Without intellectual property protections incentives to innovate disappear.

Lawrence Lessig: So I answered something close to this question before, so I won't repeat what I said there. But in summary:

(1) "How is distributing copies of copyrighted works to a stranger without the authorization of the artist, as in P2P, not a violation of copyright?"

It may be under the law as it is just now. I've not contested that generally.

(2) "Do you not agree that an artist's ability to copyright his work, if he chooses to, creates incentives for that artist to innovate and create?"

OF COURSE I do! Absolutely it does. And most of my work these days is devoted to making it easier for ARTISTS to choose how best to deploy the rights the law gives them. (see, e.g., http://creativecommons.org).

(3) "Without intellectual property protections incentives to innovate disappear."

In some contexts, absolutely correct. In other contexts, no. There's plenty of incentive to innovate around Shakespeare's work, even though no one has a copyright in Shakespeare. There's would be plenty of incentive for law professors to blather on endlessly in law review articles, even without copyright protection. In my view, rather than treating (3) as a matter of ideology, we should treat (3) as a question of fact: IP is a form of regulation; regulation makes sense where it does more good than harm. So we should be asking where IP protection does more good than harm.

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David McGuire: Does the pending case of 321 Studios over its DVD X Copy software -- which allows users to make copies of their DVDs -- seem to you a likely vehicle to address some of these fair use concerns before the Supreme Court?

Lawrence Lessig: I don't think the Supreme Court is ready for these issues. I thought it was. I was wrong. I believe 321 should prevail in the case, and I hope it does. But the hysteria around this "war" is too great just now for this Court to consider the matter with the usual balance of judgment it has displayed in (most) copyright cases.

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Alexandria, Va.: If a company has a valuable copyright and it wants to continue making money off it, why should it not be able to renew that copyright forever? I understand what copyright law says, but isn't it naive or even greedy to suggest that everything we create should ultimately be given away?

Lawrence Lessig: Well, first one might point out that the Constitution says Congress can grant copyrights to "Authors" not companies. Second, one might observe that the Constitution says Congress can secure "exclusive rights" for "limited times." And third, one might ask when the term granted corporations is already almost a century, who's being "greedy" here?

Of course one might well say the framers were idiots about this, and we should reject their wisdom and follow the wisdom of corporate lobbyists on this. Maybe.

But I'd rather focus on the agreement we have: you write, "why should it not be able to renew that copyright forever?" I'm all in favor of a renewal requirement. Indeed, I've proposed a relatively long term (75 years) so long as the copyright owner "renews" the copyright every 5 year. No doubt that might sound like a hassle -- and it is, given the way the government typically does things. But imagine one-click renewal. Imagine a system that was simple. In that world, I'd be totally ok with terms as long as they are, so long as terms had to be renewed. We know from history that the vast majority of copyrights -- 85% - 95% -- would not be renewed even after 28 years. So my aim -- to minimize the senseless burden of endless terms -- would be achieved with a renewal requirement.

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Scranton, Pa.: It seems like you think the entertainment industry's endgame is to control all content from the cradle. At that point, presumably, all content would be puerile trash. But the industry likes this idea because we've seen that the average American consumer loves the smell of garbage. Is this the depressing landscape that you see on the horizon based on our present course? Or is this scenario extreme?

Lawrence Lessig: I hope it is extreme. But it is an aspect of what I fear. I think ARTISTS and CREATORS are great. I think our framers intended them to be benefited by copyright law. But I believe our Congress (and FCC) has produced a world where PUBLISHERS (in the broadest sense of that term) are the real beneficiaries of our copyright system. And as they become fat, slogging giants, the stuff they produce (or allow to be produced) will be increasingly awful.

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Anaheim, Calif.: Hello, Dr. Lessig. Is there any way to clearly define the line between fair use and infringement? I am not a copyright expert nor am I a lawyer. Is there a way to explain your answer in plain English?

Lawrence Lessig: No, there is not, and that 95% of the problem. Fair use in America is the right to hire a lawyer -- which is fine for CBS, or NBC, but useless for most creators. That's why I've proposed changes that produce clear lines, rather than lines requiring the services of $300/hr plus professionals. The great thing about the public domain, for example, is that it is a lawyer-free zone. Anyone can use anything in the public domain without asking permission first (except if you use Peter Pan, but that's another story all together...).

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Arlington, Va.: Reps. Boucher and Doolittle have introduced a bill (H.R.

107) that seeks to provide the kind of balance to the DMCA that you suggest is important. Are you familiar with and, if so, do you support their legislation?

Lawrence Lessig: Yes, and yes. Boucher and Doolittle have been rare but important voices of balance in this debate. Zoe Lofgren and Chris Cox too. All who believe in sanity in this "war" should be doing whatever they can to support these few, brave souls. Especially Congressman Boucher, who has a well funded opponent in this race (funded by whom I wonder?)

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Flatland Crest, Mont.: You said earlier that if we can only examine one issue at a time - in this case piracy - then we as a culture are doomed. Doomed to what? Will artists fail to flourish because the entertainment industry has a lockdown on copyright? I doubt that a 13-year-old who set his or her pen to paper and suddenly produces a precocious, beautiful novel even knows what "Fair Use" means.

Lawrence Lessig: I guess it depends on what you think "fail to flourish" means. There were many who thought art flourished in the soviet union, even though the artist couldn't publish or distribute his or her art. Of course, we're not the soviet union, but the same point is true nonetheless: I don't believe we have a FREE CULTURE if creativity is criminal. I don't believe we respect the tradition of FREE SPEECH if the act of remixing culture is an act that requires permission from publishers first. I don't believe we will have a vibrant FREE MARKET if it is so heavily regulated by lawyers. So even if in the dystopian future I describe, a 13 year old is physically able to create an "precocious beautiful novel," we don't live in a free culture unless she can create that work without hiring a lawyer first.

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Washington, D.C.: In a recent article published in Forbes by Stephen Manes, he says that you are going to harm the creator and reward the people doing illegal activity as well as put "the U.S. at odds with international law." How do you respond?

Lawrence Lessig: I've responded at length on my blog: http://lessig.org/blog. But I'll say that there was no review that more disappointed me than Mr. Manes'. I've got great respect for Forbes the man, and Forbes the magazine. And as, for example, Stu Baker in the Wall Street Journal noted, my argument is not really an argument for the left. Indeed, as he argued quite effectively, it is more powerfully an argument for the right. (Copyright law, as he put it, is the "asbestos litigation" of the 21st century). So I was very surprised both with the substance of Mr. Manes's review (which was unthinking and ill-informed) and with its tone (which was rude and abusive). Both seemed to me to be beneath the quality of the publication. And as I said in my first response to Mr. Manes, it just goes to show how much more work we in this movement have to make to make our ideas understandable.

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Washington, D.C.: Hi Prof. Lessig - with each book that you release on the subject of IP rights and the 'net, I think you've become more readable for the masses. I'm thrilled with this, because I think these issues are of incredible importance for everyone. However, I think that there remains a long way to go before the general public thinks of "fair use" as anything other than an excuse used by those music-stealin' college kids. How can we better present your (our) concerns to the public in a way that helps them better understand the importance of these things to their lives?

Lawrence Lessig: Thanks for the kind words. It is extraordinarily easy as a professor to believe your ideas are clear and obviously right. And the hardest lesson of the last 5 years for me has been the recognition of how many ideas I was sure are right are, it turns out, wrong, and how hard it is to make the rest understandable. That's especially hard for me, and it has taken many years to learn differently.

I agree that it will take a great deal of work to make these ideas even more understandable. But I think the way to do it is by showing people the law, not arguing about it. Show parents the extraordinary creativity the technology of Apple enables. Show them what their kids can do with it -- the music they can make, the films they can produce, etc. And then show them the billion ways in which the law would deem that creativity criminal. When people begin to see that this is a war we're waging against the next generation, they might begin to wake-up to its threat.

(Then again, it's not as if our policy today is really much concerned with our kids at all. We don't tax ourselves so we can tax our kids (deficits); we don't pay to clean up our environment so our kids will; we wage wars that will excite a generation of hatred directed against -- again -- our kids. Etc. So I guess it is not surprising that here again, we wage a war whose primary target and victims will be our kids.)

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Edgartown, Mass.: Good afternoon. Is this the first time that you have permitted your book to be made available for free on the Internet? How are the sales of your latest book stacking up against your previous works?

Lawrence Lessig: It is the first time I've succeeded in convincing my publisher, yes. I have tried before, but am blessed this time to have a great and innovative publisher (Penguin Press) and an astonishing editor. (It was my editor who did the real work convincing the publisher). And sales are going much better than with any other book. But the part that has been the most interesting and surprising to me is not the sales. It is the derivative works. I released my book under a Creative Commons license, which left others free to make derivative works. If you go here http://free-culture.cc/remixes/ you can see a list of the amazing number of "remixes" of the book that people across the net have made. There are many different formats available now (we released a PDF only). There are audio versions. There is a Wiki (which allows anyone to change or extend the book). I never expected the energy that the net has demonstrated. And as that energy will assure the ideas spread broadly, I am extraordinarily grateful.

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San Francisco, Calif.: During the mid to late 1970's, the music industry be came moribund by it marketing ploys of only promoting large sales music groups who could fill arenas and stadiums. The response of musicians and consumers to the lack of creativity in rock music were the punk movements and new wave which developed on small independent labels. These were later coopted into the larger music industry just as rap was in the '90s. Are such consumer/artist uprisings still possible in our media controlled environment?

Lawrence Lessig: They are possible, but would be more possible if the law was not such a heavy handed regulator in this space. More important to me, it would be possible if labels would be more tolerant of experiments by authors. Creative Commons, for example, has launched a number of licenses that enable authors to mark their content with freedoms -- freedoms that will, many believe, lead to more sales of records. But these artists have been met with strong resistance by the traditional labels. We should all recognize something that no one admits: None of us know what will work best in the future. So in the face of that ignorance, we must depend upon a competitive market offering alternatives, and encouraging experiments. And a room filled with lawyers is not a great way to inspire experimentation.

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David McGuire: Professor Lessig was good enough to take an extra half hour to answer more of the many insightful questions we received. Unfortunately we're out of time. I'd like to thank the professor for taking the time to join us today and our audience for contributing so many thoughtful questions.

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