>> Tom Rubin: Good afternoon and welcome to the Microsoft Research for
Visiting Speakers series. I'm Tom Rubin and I'm Chief Counsel for Intellectual
Properties Strategy. It gives me great pleasure to introduce Professor Lawrence
Lessig of Stanford and soon to be Harvard Law School.
For the past decade Larry has been the leader voice at the intersection of
technology and law, and in particular copyright. He launched the free culture
movement and founded the vitally important Creative Commons, which Microsoft
has supported and partnered with in a wide variety of ways.
His most recent book on the subject, "Remix," which I highly recommend, is what
brings him here today. Larry surprised many of us last year when he announced
that he was turning his attention away from free culture and towards the issue of
corruption in the political process.
Not surprisingly, he hit the ground running and launched a project called "Change
Congress," that seeks to do just that, change Congress. All I can say is that if he
has the success with that effort that he's had with the free culture movement, and
I have no doubt that he will, our political system and our society will be much
improved.
Larry has made many visits to Microsoft over the past few years and we look
forward to many more. So please welcome back to Microsoft Professor
Lawrence Lessig.
(applause)
>> Lawrence Lessig: Thank you. So I want to begin with some stories. One
very familiar, 1906, this man, John Philip Sousa, traveled to this place, the United
States Congress, to talk about this technology, what he referred to as the "talking
machines." John Philip Sousa was not a fan of the talking machines. This is
what he had to say: "These talking machines are going to ruin the artistic
development of music in this country. When I was a boy in front of every house
in the summer evening you would find young people together singing songs of
the day or the old songs. Today you hear these infernal machines going night
and day. We will not have a vocal cord left," Sousa said, "the vocal cords will be
eliminated by a process of evolution, as was the tale of man when he came from
the ape."
Now this is the picture I want you to focus on, this image of the young people
together singing the songs of the day or the old songs. This is a picture of
culture using modern computer terminology, we could call it a kind of read-write
culture. It's a culture where people participate in the creation and re-creation of
their culture. In this sense, it's read-write.
And Sousa's fear was that we would lose the capacity to engage in this
read-write creativity because of these "infernal" machines. They would take it
away, displace it, and in its place we'd have the opposite of read-write creativity,
what you could call using modern computer terminology, a kind of read-only
culture. Read-only in the sense that creativity is consumed, but the consumer is
not a creator. Culture in this sense that is top down where the vocal cords of the
millions of ordinary people have been lost.
This is an image that Aldous Huxley also evoked. He says, 1927, "In the days
before machinery, men and women who wanted to amuse themselves were
compelled in their humble way to be artists. Now they sit still and permit
professionals to entertain them by the aide of machinery. It is difficult to believe
that general artistic culture can flourish in this atmosphere of pecivity(phonetic)."
That's the first story, here's the second.
About 13 years after Sousa testified, "the United States voted itself dry. It
launched a war against an obvious evil." Evil was the dependence on alcohol.
By 1929, people were beginning to recognize that that war was failing.
Here in Seattle, there was a very important moment in that battle where police
officers tried to fight back against this failing effort at stopping the illegal
bootlegging that was spreading across the country. They launched a new
technology in this war here, the wiretap.
And in 1928, this man, Mr. Olmstead, and 11 others found himself indicted by
prosecutors based on evidence that was gathered using a wiretap of his
telephone conversations. And the Supreme Court was asked to answer the
question whether this wiretap was legal.
Well, the Supreme Court looked back to this document, this Constitution, in fact
to the 4th Amendment of the institution. Here is the 4th Amendment, actually it
looks more like that. And pointed to the clause that the Fourth Amendment
protects against unreasonable searches and seizures.
But Chief Justice Taft said that the Fourth Amendment was written with trespass
in mind, protecting against illegal trespass on your property and because the
wiretap that the police had attached to Mr. Olmstead's phones was done without
any trespassing, they didn't actually enter his house, they just connected the
wires to the wires as it left the house, there was no violation of the fourth
Amendment, Chief Justice Taft held.
And for 40 years it was completely legal from a Institutional perspective for the
police to wiretap phones without any prior judicial authorization. But in this
opinion Justice Brandise wrote a very strong decep. And he said the Fourth
Amendment was enacted to envision a certain principle, a principle to protect
against the invasion to protect the privacy of individuals at least in their own
homes. But how you protect privacy is a function of technology.
And he said, quoting a case called Weams Timework Changes, which means
that we need to translate the protections and old protection into a new context.
That's the second story.
The third story happens just a couple years later. By 1933, this failure of
prohibition was finely recognized by the nation. This failure was recognized
because the increasing costs that were unexpected of prohibition, the rise in
organized crime, the fall in civil rights were compared to the vanishing benefit of
this war against prohibition, then mainly everyone drank.
These two things put together led people to realize that maybe the costs of this
war exceeded the benefit. And the United States launched an effort at peace by
ending prohibition and repealing the 18th Amendment. But in repealing the 18th
Amendment, what was not repealed was a fight against the dependence on
alcohol. What was repealed was the idea of using this kind of technique in a war
to fight it.
Okay. Those are the stories. Here is the argument.
This book, the last that I am writing in the series about IP and technology, is in
part about a war. It's in part about the war we refer to as the copyright wars. But
what I want you to notice is the parallel between the war we're seeing right now
and the wars that I just described.
So as with the war which Sousa was launching, this is a war that's inspired today
by artists and industry, which is terrified by the changes in technology, which they
fear will affect a radical change in hour culture gets made. And as with war of
prohibition, the copyright wars are also a kind of war of prohibition, a war which
excites extreme rhetoric on both sides, of course.
My friend, the late Jack Valenti, head of the Motion Picture Association of
America, referred to this as his own "terrorist war," where apparently the
"terrorists" in this war are our children. And as with the repeal of prohibition,
there is an increasing question around these wars, whether the costs of this war
outweigh the benefit.
To answer that question, we need to think a little bit about the benefit of
copyright. Copyright, of course, is a solution to a particular kind of economic
problem. In my view, it is an essential solution to an unavoidable problem,
without what is a restriction on speech copyright, we would paradoxically have
less speech.
We limit the freedom of people to speech, by for example, copying the work of
others without their permission in order to create incentives to produce more
speech, speech that otherwise would not be created. It's an essential system -in my view copyright is an essential part of any rich, in both the diverse and
monetary, sense of culture. But as with privacy, the write regulation is going to
be a function of technology. And as the technology changes the architecture of
the write regulation is going to change, as well. What makes sense in one period
may make no sense in another. So the question we need to ask is what the right
regulation right now for copyright would be.
Well to answer that question, I think we need to distinguish as Susan did
between the amateur and the professional. And a copyright system has to be
designed to encourage both forms of creativity. It has to provide incentives for
the professional and a certain freedom for the amateur.
So how is it this system might do that? Well, I think we can see a clue and
something of the evolution of the way technology and copyright have developed
over the last decade. So I see this in stages, three stages.
The first is Circa 2000, where we saw technology developed to extend the
read-only culture of the 20th century. Massively efficient technologies to enable
people to get and consume culture created elsewhere. This was the poster child
of this vision of culture. Apple with their iTunes music store, which allows you to
buy for $.99 any song you want and download it to your i-pod, of course, only to
your i-pod. But you were guaranteed at least within America to be cooled if you
engaged in this form of cultural consumption.
This was the vision my colleague Paul Goldstein described of the celestial
jukebox that would enable people wherever they were to get access to whatever
culture they wanted at a relatively low price. Critically important in my view to the
development and spread of culture.
But then a second stage I mark around 2004 is importantly different. This is a
revival of the read-write culture that Sousa was celebrating. The poster child for
this is something like Wikipedia, but the kind -- the part I want to focus on is what
I call remix here. Taking culture and doing something with it to create something
new and sharing that creativity.
So we've seen remix in a lot of different contexts. For example, in the context of
music in 2004. Everybody knows this album by the Beatles called "The White
Album," which inspired this album by Jay-Z called "The Black Album," which then
inspired this album by DJ Dangermels called "The Gray Album," which literally
synthesized the tracks of "The White Album," and "Black Album" together to
produce something gray. That's 2004.
The modern version of this is something like "Girl Talk 2004." It's two tracks that
are being mixed together. "Girl Talk" can mix something like 220 tracks in one
song together to produce the kind of work that he celebrates.
This is an example that I just found literally today. This is fantastic, D.J.
Earworm(phonetic). They're mixing the top 25 songs from 2008 into this music
video taking music videos of these songs.
(Music playing)
>> Lawrence Lessig: Think of making a mix of film, 2004, this film "Tarnation,"
made its debut at CAN, said by the BBC to wow CAN. This was a film that cost
$218 for the kid to make. He took video shot through his whole life and using an
i-Mac given to him by a friend, he could remix it to a level that would wow CAN
and win the 2004 Los Angeles International Film Festival.
Or they've got something called animes. Everybody knows what anime are,
these Japanese cartoons sweeping American culture. Animes are animated
music videos where people take anime and reedit them setting them to some
different music track or something else. So something as trivial as this...
(Music playing)
>> Lawrence Lessig: Or something like this...
(Music playing)
(Music playing)
>> Lawrence Lessig: Or think in the context of politics. This was a natural
expression from the last Presidential campaign of mixing together the audio, the
words of Obama and this form of music.
>> Video: It was a creed written into the founding documents that declared the
destiny of a nation. Yes, we can.
>> Lawrence Lessig: Something maybe a little less ->> Video: Good evening. In the first, second, third and last Presidential debate,
I'm Tom Brokaw, (talking over each other) of NBC news. By now we've heard all
the talking points, so let's try to tell the people tonight some things that they
haven't heard. Thank you, Bob. Tom, thank you. Thank you very much, Jim.
Well, thank you, Tom, and thanks to the university. I think everybody
understands...I think everybody knows now we are in the -- and we are
experiencing the worst financial crisis since the Great Depression. Eight years of
failed economic policies...
(Music playing)
(Music playing)
>>: My, there's only you in my life, the only thing that's right.
>>: My first love. You're every breath that I take. You're every step I make.
>>: And I'm ->>: I'm ->>: I want to share all my love with you. (Singing together)
>>: -- no one else will do.
>>: And you're eyes...
>>: Your eyes, your eyes.
>>: They tell me how much you care. (Singing together) Oh...
>>: Meantime it is take (inaudible) ->> Lawrence Lessig: All those creative works that get shared in the digital
context, but get broadcast. The next set of examples are much more about
communities being formed in this context.
This kind of call and response. That increasingly is what happens in places like
Youtube. So, for example, I found this video in YouTube.
>> Video: (Cheering)
>> Lawrence Lessig: And I thought there's about 1.7 views. Then that inspired
this video.
>> Video: (Singing and Music Playing) ->> Lawrence Lessig: Of course there are about 3.2 million views of this video.
And there's scores of others that copied this or for example, you know, this
famous...
>> Video: All the single ladies, all the single ladies. All the single ladies, all the
single ladies. All the single ladies, all the single ladies. All the single ladies, now
put your hands up.
>> Lawrence Lessig: And then SNL did its own version of it with Justin
Timberlake.
>> Video: All the single ladies, all the single ladies. All the single ladies, all the
single ladies. All the single ladies, all the single ladies.
>> Lawrence Lessig: But an enormous amount of amateurs have now taken it.
(Singing)
>> Lawrence Lessig: Or...
>> Video: All the single ladies, all the single ladies.
>> Lawrence Lessig: So from the very cute to the absolutely hilarious...
>> Video: All the single ladies, all the single ladies. All the single ladies, all the
single ladies. All the single ladies, all the single ladies. All the single ladies, now,
put your hands up.
>> Lawrence Lessig: Or here's a video I found.
>> Video: Soldier boy told you. I got a little down for you called the Soldier Boy,
but you got to punch that crank back three times from left to right.
(Singing and Music playing)
>> Lawrence Lessig: You guys have heard this.
>> Video: Soldier boy told. I got a new dance for you all called the soldier boy.
You got to punch then crank back three times.
(music playing)
>> Lawrence Lessig: This.
>> Video: Soldier boy told. I got a new dance you all called the soldier boy.
You got to punch then crank back three times for a...oh, yeah.
>> Lawrence Lessig: The point is to recognize these are now conversations
that happen on this platform. People from across the world, it's the modern
equivalent of what Sousa spoke of when he spoke of the young people together
singing songs of the day or the other songs. They don't do it on the corner or in
the back lawn, they now do it on this platform, but it's a celebration of this
read-write culture. It is what remix is in the sense I mean it.
Now of course the importance here is not the technique that any of these videos
demonstrate because the technique here has been available to people making
films from the beginning of film. What's important is the technique is
democratized. It is the fact that anyone with a $1500 computer and access to the
internet can now make content that speaks and mixes culture together in a way
that attacks ideas more directly to a generation than words ever could.
Now the problem here, though, of course is that this read-write creativity at least
from some perspectives in the communities that I live in, is presumptively illegal.
Right? So D.J. Jandermous(phonetic) knew that he could never get permission
to remix the Beatles. This kid discovered he could, while conned for $212, but
then discovered it would cost over 40 $400,000 to clear the rights to the music in
the background of the videos that he had remixed and these sites are
increasingly getting take-down notices from the artists who don't like their music
to be remixed in this particular way. And again this, is my favorite example. I
don't care what you think about Tony Blair. I don't think what you care about
George Bush. I don't care what you think about the war.
The one thing you can't say about that video is what the lawyer said when they
were asking permission to synchronize those images with that music. The
lawyers said no, you cannot have our permission because "it's not funny."
(laughter)
>> Lawrence Lessig: So my view this is problem number one here. We have a
lot out of sync with the technology. And just as with the fourth amendment this
law needs to be updated. We need to update copyright law. It needs to be
updated to make sense of the objectives of copyright in the context of this new
technology.
Problem number two from my perspective, problem number one from the
recording industry's perspective. But from my perspective, problem number two
is what we refer to as peer-to-peer piracy. The "terrorism" that Jack Valenti
spoke of which makes our kids terrorists.
Now the thing we need to recognize about this war waged against this kind of
terrorism is that this war of prohibition has not worked. If by worked, we mean
reduce the bad behavior. The one thing we know from statistics is that
peer-to-peer file shares apparently don't read Supreme Court opinions because
here it is where the Supreme Court firmly and clearly indicated that this behavior
was presumptively a violation of copyright law. We haven't seen the dropoff that
one would expect once this law is clarified.
All this war has done is to render this generation criminal. Now when I wrote my
last book about this free culture, it was a very depressing story because there
wasn't much here to be happy about. But in the four years since I wrote that
book, in fact, my view has changed pretty substantially. Kind of odd for me. I'm
optimistic, no longer pessimistic about the way this war is developing and that is
because of what I think of as the third stage in this development. The stage that
we're just beginning to see right now, the development of what I call the hybrid.
Now understand hybrid we have to think a little bit about economies or
understand that there's more than one kind of economy out there. Some
economies are plainly commercial economies, so a commercial economy like a
grocery store is a place where It's a quid quo pro, this for that. And we use
money to speak in that economy. An important obviously crucial part to the way
any society functions.
But in addition to the commercial economies there are some economies which
are not commercial economies. I call them here sharing economies. Right. So
here's a sharing economy. Here's a sharing economy. Here's a sharing
economy. These are economies in the sense we have repeated transitions over
time that mitigate and define how they developed. Money is not how we speak.
Indeed. If we introduced moneys into these economies, we would radically
change the nature of these economies. So imagine one friend says, well, let's
get together next week for lunch and the other friend says, no, how about $50
instead. All right. Or imagine introducing money into these economies, right?
That transforms pretty directly into that economy.
So the point is this kind of economy is also this non-commercial economy rich
and important part of our life, coexisting with the commercial economy.
Now the thing to see is that increasingly we have economies that are both
commercial and sharing economies living together. And this is what I want to
point to as the hybrid economy. I want to define the hybrid economy for
purposes today as a commercial entity that tries to leverage a sharing economy
to produce value for the commercial entity.
So a lot of obvious examples. Think about Flicker, photo-sharing site which was
born with sharing photographs at the core of its DNA, enabling people to signal
even using cer -- create common licenses, the right to take photographs and
share them with others. But obviously Flicker, when it was acquired by Yahoo,
was not acquired out of yet another desire of Yahoo to throw away shareholder
value. It was motivated by the idea Yahoo could make money out of this sharing
economy.
Or think about Yelp, just ordinary site of reviews by people spending an
enormous amount of time helping other people navigate restaurants or hotels or
whatever. But again, the site, a sharing site is framed in a way that eventually
will return money to Yelp, or a second like. Virtual World, that was built literally
by thousands of people contributing an enormous amount of time and code in
this space, creating this economy defined in large part in a sharing sense, but
obviously an economy driven to make money back for Linden Lapp.
Now once you see this form of sharing economy, I think you begin to see it
everywhere. Right? You might think Amazon is a commercial economy, but
when we think about what makes Amazon successful, it's not just the fact that
they're selling books, it's the fact they inspire an enormous number of people to
for free give them reviews that help other customers figure out exactly what
they're supposed to buy. Apple's doing this. Microsoft, longer than of these
people, has been focused in exactly this way on building a hybrid economy.
Mark Smith, of course, inside the research group devoted to communities
technologies, focuses on how to continue to encourage an enormous number of
people to spend their Sunday mornings, not necessarily at church, but at their
computers helping other people to use Microsoft products more easily.
Volunteering to enable this product to work in a way that eventually returns value
to Microsoft. An event in Berlin about a year and a half ago, Steve Balmer was
describing to publishers the future of internet service and the way that I described
it, he said, "every successful internet business will be what I've just defined here,
"a hybrid."
Now the point to see is there's an enormous potential here to do good, both from
the sense of enabling a platform for extraordinary creativity and producing real
economic wealth for important industries in our society. But my view is this
potential is realized only if we affect certain important changes in us. So focus
on these changes.
First is a change in culture. We need to develop immunities to the kind of control
freak mentality that exists in too much of corporate culture and develop a way to
practice respect for the creators who are going to produce the enormous value
that hybrids will celebrate. Because there is a growing hybrid skepticism out
there in the space of the net. O'Malich on his blog puts it this way. This culture
of participation build business on our collective backs? Whatever the collective
efforts are they are going to boost the economic value of these entities, what we
share on their upside, not likely. That attitude is driven in part by certain kinds of
hybrids.
So for example there is one I refer to a little bit unfairly as the Darth Vader hybrid
here. So the Darth Vader hybrid is inspired by this site, Star Wars Mashup site.
This is owned by Lucas film. It invites people to take this 30-year-old franchise
and mashup video, adding your own music or your open images to make it
exciting to a new generation of kids. Read the terms of service, though. All the
mashups are owned by Lucas Film. Indeed, the stuff you add if you upload
music, Lucas has a worldwide perpetual right to exploit that for free without any
compensation back to the original author.
So this is not a site that respects creator rights. The creator doesn't have any
rights in this context. This is more, to be a little bit unfair, like a kind of digital
sharecropping for the 21st century. Now the point is to the extent rhetoric like
Aums(phonetic) spreads out there, we're going to be talking about what is a just
hybrid? What is the social contract of a just hybrid?
I don't think we know. That's what's interesting about this. There are lots of
dimensions to this to figure out, but one thing I think we're pretty confident about
is that this will not be a picture of a just hybrid.
So that's a change in culture. Then there are changes in law. First change in
law that I think we need to affect immediately is a pretty substantial de-regulation
of culture. All right. Focus the regulation of copyright law where it can do some
good and remove it where it's doing no good at all. So if we think about this
matrix and distinguish between making copies of someone's work or remixing
their work and between the professional and the amateur, the way copyright law
functions right now is it presumptively puts this it all within the reach of copyright
law.
If we think about the way in which it reaches because it touches any device that
makes a copy, it affects a kind of scope for regulation that never before copyright
has attempted to do and one that makes no sense now.
In approximate my view it's obviously true that copyright law needs to regulate
efficiently here, protecting the professional, as the professional makes creative
work from someone who's just going to go out there and make copies of that
creative work without the permission of the professional. But it's also pretty clear
to me this space needs to be free of copyright regulation. Not fair use. Not the
sort of regulation that requires a lawyer to figure out whether on balance
copyright law ought to be protecting this work or not. But the sort of rule we
could tell any kid and any kid could understand. Free use that says amateur
remix of culture is not the sort of thing copyright law worries about. These two
boxes are harder.
Obviously if an amateur shares copies of other people's work, even without
compensation that cannibalizes the professional market so that needs to be
regulated to some degree. Fair use is an appropriate regulation there. And the
same thing with the professional remix market, some remixes, for example,
taking a book and turning it into a movie properly, appropriately regulated by
copyright law, but other remixes I think need to be more flexibly regulated, like,
for example, equip "Girl Talk."
This balance says that we need to take an important set of what we now
presumptively regulate and move it out of the scope of copyright regulation. That
is the first change. The second change is the copyright law think about
regulating only where it can effectively regulate. Here again this is where the war
of piracy is significant. This war, which again, I think, has totally failed to achieve
this objective, is a war that's been waged for the last 10 years in a context where
there have been proposals for alternatives. Alternatives designed to make sure
artists get paid, alternatives by wide range of important copyright scholars, but
without attempting to control the ability of at least amateurs to share content. So
compensation for the artist without attempting to control or block peer-to-peer file
sharing.
Now the thing to recognize is if we had these proposals in place a decade ago,
how would the world be different? Well, number one, artists valid had more
money because of course they have gotten no money from the illegal
peer-to-peer file sharing of the last 10 years. Even when the REAA was suing,
the REAA wasn't giving money to the artists, they were giving it to the REAA and
to the lawyers who were affecting the suits.
Number two, there would have been more competition among businesses.
We're finding new ways to exploit content because the rules valid been clear and
is easier for them to interact with. But the thing that's most important to me, the
reason why I wrote this book is that even as those two things would have been
great the most important change that would have been affected is that this
generation would not have thought of themselves as criminals raised in this way,
thinking of themselves as criminals. And that's the point I want to leave you with
here, you recognize here especially because you've fought and understood this
network better than any place in the world.
There is no way we can kill this form of creativity. The only thing we can do is
criminalize it. There's no way we're going to stop our kids from being creative in
ways we weren't growing up. We can only drive that creativity underground. We
can't make them passive the way I was passive, for example, growing up. We
can only make them "pirates."
And the question we as a society need to focus is that any good? Our kids live in
this age of prohibitions. In all sorts of context of their life, they live life constantly
against the law. And my point that I urge you to recognize is just how corrosive it
is to live life against law. How corrupting it is of the very idea of the rule of law in
a democracy. Given there are other ways we can achieve the objectives of this
war without this cost we need to stop this war now. Thank you very much.
(applause)
>> Lawrence Lessig: So happy to take questions or abuse or whatever. Yeah.
>> Question: Matrix (inaudible) began with the professional and the amateur.
One thing that I'd be interested in hearing your thoughts on is that the
professional and the amateur, it's not so discreet anymore. These technologies
are the same kind of enabling people. The distribution that amateurs have is
just, you know, inconceivable 10 years ago.
>> Lawrence Lessig: Right. The lines aren't distinct. But just because the line
is not distinct it doesn't mean there are not distinct cases. And copyright law, the
way it is functioning right now, in my view has this exactly backwards.
So I tell this story in the beginning of the book of Stephanie Lentz, who had a
13-month-old son named Holden. And Holden hears some music and starts
dancing. So Stephanie Lentz takes her video cam and captures it and then
wants to share this enormously cute vision of Holden Lentz dancing with her
mother. So she uploads it to YouTube. Couple months later, Universal, the
copyright owners or proprietors for the copyright of the music by Prince sent
YouTube a notice that said Stephanie Lentz has violated copyright laws by
creating this work without authorization to include the music and it needs to be
taken down.
Now under their view of copyright law as it exists right now Stephanie Lentz has
violated copyright law. YouTube, so long as they take it down within a prescribed
period of time, is immune, right? That's backward in my mind. In my mind,
Stephanie Lentz's creativity should be unreg -- deregulated, not part of the
regulation copyright law.
When it gets uploaded to YouTube and YouTube makes money on the music
being played in the background, let's say, then I do think it's appropriate that
there be some type of collective or some type of license, blanket licensing that
YouTube is playing for music at least in some way. It's going to be complicated
to figure it out exactly, but I think it's totally appropriate they be required to
license it, but it's ridiculous they get a free ride while Stephanie Lentz is viewed to
be the copyright infringer. Right?
So at least we need to start by flipping those cases and then work on the harder
cases in the middle. So a bunch of these amateur creators want to become
professionals. Great.
So there's a point at which when they start distributing in a way that is triggering
what we should think of as commercial activity, they are -- should be governed in
all the ways we think copyright law needs to be covered. But my point is we
have spent so much time focusing on the professional side that we've not even
paid attention to the environmental impact of that on the amateur side. And
we've produced a world where the amateur is presumptively a criminal, where
that serves no purpose at all for copyright law.
Yeah?
>> Question: In that example, Universal doesn't -- it's hard for me to believe
that People in that company, as short-sighted as they are, really care about this
video of a kid dancing. But they do care about not making any money ever again
on Prince and they do care about not making money on new artists that come
along under that protective quadrant of your graph.
So they seem to be lashing out and overreaching because they are worried
about protecting this piece. What is your thought for reassuring them that this
piece could be protected because if they had that reassurance, might they just be
willing to stop lashing out at these other quadrants?
>> Lawrence Lessig: I think it's easy to say that we're going to build models
that artists will make money on. I think it's hard to say for sure we're going to
build models where record companies are going to make money, you know.
Now so it might be the record companies is the dinosaur. Doesn't mean that the
stuff that record companies were doing won't be important and valuable, like
there are obviously entities which help artists become great artists, they market,
they figure out what the right mix is. They do lots of valuable things that
somebody is going to need to do. And when they do it, they are going to need to
be paid for it. But there is a particular business there that I'm not convinced is
actually going to be in business for much longer.
So I'm not really eager to try to convince them. But if you wanted to make the
argument the point I'm trying to make in this book, you've got to start by seeming
and behaving reasonably. If you don't behave reasonably, you give the other
side everything they need for behaving unreasonably in response. Right.
So it's the interaction between two unreasonable extremists that's producing the
destructive psyche they'll we see right now. And between the two it's the adult
that needs to be the adult first. Right? It's the Universal Music that's got to be
the responsible actor.
Now there are examples of this. I think Viacom is increasingly -- even though I
think their lawsuit against YouTube is baseless, Viacom is, I think increasingly
behaving like an appropriate adult. Viacom has a very clear policy now where
they will do automatic notice and takedown if you take for example the full
episode from a Colbert Report and post it on YouTube. But if you do anything
with it, if you do any remix with it at all, they will not touch it. They will not
complain about it at all because they're recognizing there is something for them
to protect and there is something where they don't have a reason to protect.
And I think examples like that are the most powerful sort of thing that the industry
could be deploying in the campaign to try to win over a generation who right now
is deeply skeptical of the need for copyright. And it's, you know, in some ways I
feel kind of like Gorbachev, right, because there's a -- there's a growing copyright
abolitionist movement. All right. People are saying copyright was for the 20th
century, the 19th century, 18th century, but it's over. We don't need it anymore.
And I'm not an abolitionist. I really believe copyright is essential. It is an
important part of culture of industry, as well as -- obviously I haven't spoken
about software copyright, which is obviously important to you. But the extremism
here is really encouraging the abolitionists to grow. I feel like Gorbachev
because I feel like, you know, I'm just an old communist trying to preserve the old
system in a new, you know, update it to make sense here. And the thing I'm
fighting against is the extremisms on both sides that make it hard to try to think
about how to map that in the middle. Yeah. Right over here.
>> Question: So I'm struck by -- you just mentioned software and I'm struck in
your presentation here. I do Open Source gratitude here so I'm very familiar with
your work and some of these challenges.
I'm struck by what I just see here is actually a shift from copyright focusing on
copy actually toward use. Right? Let me pause at three buckets that were
actively struggling with, right? Which is if you actually are a remix or a creator
and you want the Window source code like hack around with it and build
something new and wacky, we'd actually like give it to you.
If you're going to distribute something and there is potentially like some big
revenue model in there like YouTube or Google, well, we like to have that be a
commercial agreement. The biggest thing to worry about is cannibalization. If
you're actually just going to use Windows for its purpose, that's what we'd be
concerned about. And I welcome your thoughts because actually now I'm saying
like, huh, this isn't really about copyright. It's about use right. It's sort of
backwards in the way our laws work today. I don't know if you think there's value
to go in that direction.
>> Lawrence Lessig: I do. I mean, you know, there's something weird about
the word copyright. The average person thinks that copyright is about controlling
copies. Right? And in fact, in American copyright law, for most of American
Copyright history it didn't regulate copies at all. It regulated things like publishing.
Right. It was picking out activities that it needed to regulate because they were
good proxies for the kind of use of culture that ought to be controlled by a
commercial entity as opposed to the kinds that weren't.
If you pick up my book in Real Space and you read it, that is not a fair use of the
book, it's a free use of the book because reading doesn't produce a copy. You
can give it to somebody. That's not fair use, it's free use because giving doesn't
produce a copy. You can do all sorts of things with that without triggering
copyright law because it doesn't produce a copy. But American copyright law
around 1909 and copyright scholars have demonstrated how this was almost an
accident, introduced the idea of "copy." And then as technology developed such
that, you know, the access to "copy and spread," in some sense the scope of
copyright law expands, too.
So now we live in a digital world where literally everything you do produces a
copy. You take my book and read it on your screen. You've produced a copy in
Ram, right, to read it. You want to give it to somebody. Your e-mail system
produces 13 copies as it goes from Point A to Point B. Right?
So copying is as common as breathing. And the point is when you've got
architecture of regulation triggered on copying, it makes no sense now in this
particular environment.
So we got to happening about what does make sense to be regulated. Like go
back to trying to think about the kind of uses that make sense. And I think your
intuition is exactly right and that's part of what I'm trying to get at here. Right? I
understand how an artist doesn't like people remixing their work, just like I don't
think the way reviewers typically review my books. They take my words and they
put them together in ways that distort what I'm saying. Right? But I think I'm
mature enough to know that I shouldn't have a right to go launch a lawsuit
against that person who has reused my words in ways that I don't and nobody
would think that I have that right.
But in the context of music or video, people do think you have a right to launch a
lawsuit when somebody mixes things negligent ways that you don't want. The
artist integrity. I think we need to grow up a bit and get beyond that point of
thinking we need the system to grant perfect control all the way down the line
and get to the point of thinking exactly the way you're thinking. Where do we
need control? And where you don't need control, give it up. I think that's the kind
of environmentalist point, but it's environmentalism about culture.
I've been to the left. How about to the right here.
>> Question: I was just going to say you just mentioned give up control. I think
best kind of the issue here is you have -- like if I'm a record company, a large
record company, I want to be the content producer. I -- as terrible as it is, like
they want to be the people who are producing culture and they don't want to lose
control of the culture because they produced culture and I think what is
frightening for industry right now is literally that, that all of a sudden there are all
these content producers and that's a bad thing.
>> Lawrence Lessig: Okay.
>> Question: But in reality for humanity it's the best thing possible.
>> Lawrence Lessig: Of course.
>> Question: And so the corporation is reacting to basically you're cutting out, I
mean the whole purpose of the reporting industry would be, we're going to find
the artist and we're going to mold them and we're going to make it the way we
want it. But now kids are saying no, we're going to make it the way we want it.
And so they're having to give up control.
>> Lawrence Lessig: Right. I don't think it's so much about corporations
because I think the future will be filled with lots of corporations who find great
ways to make money. But they won't be making money in the business model
that is now waging the war right now.
I mean, it's exactly for the reasons you say. They want control. And 10 years
ago when we were first having this conversation, I think I met you about 8 years
ago when I first came to Microsoft, and we first had this conversation. And
remember our conversation we had about speculations, about whether this war
was going to work or not. Right? It was an open question. You could see it was
possible that the technology, they were deploying also to DRM technologies. It
was to be embedded in everything. The navy was going to work. It was an open
question. But I happening at a certain point you've got to be branded not to
recognize it's just not working. It's just not going to work.
So what clever people in this business are doing is figuring out how do we make
money under the assumption we can't perfectly control how the content gets
produced or how it gets distributed. And it's not like they're not going to be ways
to make money there and I think the -- that's again why I'm optimistic like some of
the smartest people now are figuring out, let's figure out how we shift to the world
where we can make money even though we don't control.
And then you know, this model of production, for example, there's a great series
in Britain that was produced by basically inviting people to create content that
then every week would get mixed into the series so all of it was created under a
creative common license and shares in the series channel 4 then displayed it in
words for the Best Series for this content. But they had figured out a way to build
this hybrid where they had encouraged the enormous amount of people to for
free create content which they could then leverage into something that made
money back for their company and everybody was happy about it because they
respected the social contract of exactly how that should be done. I think that is
the challenge in the future here.
Yeah?
>> Question: So to the same point about this new hybrid models which worked
by (inaudible) even though one could share one (inaudible). One example I've
seen recently on YouTube is (inaudible) opening up an ad where they can decide
(inaudible). So that's just, that remix is provided for the original guy, sort of like
the writing in, sort of plagiarizing, the references and so on. So the (inaudible)
get something off of it.
>> Lawrence Lessig: Yeah. Exactly right. And it's nothing -- this is nothing
new. So, you know, in copyright law, when you make a record and that record
gets played on the radio. The radio station doesn't have to pay performance
rights for the record for the recording on the radio.
And when that was being debated, the reason for that was the claim was made
by the broadcasters that this was free advertising for the record. So why should
we have to pay for the performance right for the thing we're doing that's giving
you free advertising.
Now bizarrely, Congress has changed copyright laws, so if you do the same
thing on the internet, digital performance, then you've got to pay for the
performance rights. So terrestrial radio broadcasting gets the free ride from the
performance rights. But digital broadcasting has to pay for it. That's because the
digital broadcasters didn't have the same lobbyists as the terrestrial radio stations
do.
But this idea of like what is the balance that makes sense based on who's getting
what is exactly the kind of pragmatic idea I think we need here as opposed to the
religious attitude that looks at all this and says, if there is a copyright, it's a
violation. It's a sin and we have to eliminate the sinners. That's self-destructive.
All right. Yes. The woman in the back, you had your hand up.
>> Question: You know, I liked when you did the two extremes are easier and
the middle is sort of harder. How would you draw that in this case. You bought
your book and let's say I want to take it after every paragraph and make my
comments or counter arguments or whatever and redistribute it.
What would be -- clearly that's a remix that was probably okay. Wouldn't you like
to sell it? I don't really understand how you draw those lines or where would you
regulate it?
>> Lawrence Lessig: Well, if you're in the business of selling that content, in my
view you're then in a professional space and it might be that depending on the
way you did it, I would even think that should be fair use because again I think
Girl Talk should be allowed to make money settling copies of his music. But it
would depend on the way it is argued.
But if you are not selling it, if you are doing it in a way that's enabling people to
see the relationship between your comments and the other content, it -- my view
wouldn't be a problem with it.
>> Question: Cannibalizing your sales, so basically I'm giving it away freely and
so everybody can get your book by getting it in my incarnation with my
comments. They don't have to read mine, they can skip mine and read yours.
So ->> Lawrence Lessig: Yeah. So again it kind of depends in the way in which it
is implemented. But I think it goes back to exactly the point that was made
before. The thing we ought to be thinking about is which bucket is it in. And I'm
agreeing with you, agreeing with the original comment that if we think of it in the
cannibalization bucket then that's the thing for copyright law to worry about. If we
think it's in the ad adding something creative or critical bucket then I don't think it
is a sort of thing copyright law ought to worry about. But a critical factor that I
don't think copyright law has been sufficiently sensitive to is figuring out which
bucket it's in has got to be a simple task. I mean right now copyright law is so
insanely complicated because it was basically crafted by lawyers talking to
lawyers, they didn't have to worry about trying to make a rule that any
12-year-old can understand. But if it is going to be regulating 12-year-olds or
15-year-olds, as they make and create content, it's got to be as simple as it
needs to be to be understandable in that context. And the system we've got now
is so radically complicated for that is couldn't -- it's a pretty substantial reform.
>> Question: My question kind of got cut off in path there. Also concerning
major (inaudible) I'm sorry, Girl Talk. I'm a big Girl Talk fan and including their
last album in the last year it's the first one we've can choose to pay for, unlike
what we do (inaudible) rainbows, which is do nothing or you just pay
(inaudible) -- so you know he's making money off it at this point. He's also
touring, which is basically just a glorified D.J. job. But still he's receiving money
for the works he's produced. And again, with your chart, he's modeling to a point
where he's a professional and he's remixing and copying. I guess my question is
at what point, how many millions does (inaudible) have to make this work for the
(inaudible). For instance YouTube, you know they established just a remix of
(inaudible). They were copying a bigger risk for (inaudible). And also (inaudible)
the greatest successful achieves and because of that risk of litigation
(inaudible) ->> Lawrence Lessig: Yes.
>> Question: -- almost lead to a disincentive for that success if you're working
on the under level (inaudible) ->> Lawrence Lessig: Right. This is certainly what hip-hop saw in the history of
the way that genre of music developed.
Now just to be clear so I can plug an earlier stage of my life, the great thing of
what Girl Talk did, was not just that they made it so you could specify the price,
it's that when you downloaded their album you also had a license to share it.
Radio Ad, you had no license to share it. But Girl Talk explicitly gave the
permission to share and remix it for noncommercial propers. If you wanted to
make commercial use of it, then that was going to be a different question, at least
the distribution.
But I -- again, I think that the way to understand whether Girl Talk should be free
to make money off of that content is to go back to the cannibalization issue.
Right? Nobody listens to Girl Talk as a way to avoid paying for the music that
Girl Talk remixes. Right? Just doesn't do it. The idea you could conceive of a
licensing market where, you know, you had to clear the rights for every single
clip, but, you know, you've seen Girl Talk perform.
I mean, I know that he has a very elaborate thing planned in advance, but I'm
pretty sure that a lot of that planning is done at the last minute before he actually
goes to perform. Now again, we could imagine copyright becoming innovative
about how to deal with this. Historically it was innovative in the context of
recorded music, I mean making records.
So it was very important fact and the recording industry all through the 1980s
defended this vigorously, that you have a right to make a cover of somebody
else's music once they've recorded and released the original album. You have a
right to do that. Right? You've got to pay for it, but you have the right to do that,
whether the Beatles like your cover or not. Right? That encouraged the kind of
creativity with compensation and what Girl Talk actually says is he would love the
scheme where he could just get a clearance to do a whole bunch of remix, pay
the price that makes sense, so the industry can survive, but then be free to remix
on top of it.
So it's not like he's opposed to the idea of compensation, but as you recognize, if
you have 230 clips in a three-empty song, there's no clearance mechanism that
could make that possible that exists right now.
All right. Two more questions.
>> Question: I'm having trouble finding the right boundary. And let me offer a
very simple example, I think, because I don't know how to fit it. Very similar to
some of the old ones, some of the prior ones. But I take somebody's music and I
add very creative video to it. It's clearly somebody's music unadopted. I
published it, maybe not on YouTube, noncommercial. I post it myself. I
self-post. There's no commercial entity involved at all. Millions of people can
now take this creative thing that I've done and ignore the video and get the
original music.
Is there some copyright violation in that?
>> Lawrence Lessig: Yeah. In my view there should not be. In my view the
fact they can is not enough to outweigh the important values making sure that
other people are allowed to do exactly this kind of noncommercial remix.
Now, you know, you could have a more subtle rule that kind of asks in what
sense is it really a remix. So what you've done is you've synchronized images
with the music and that synchronization is technically a derivative use so that is
something like remix, but maybe you want to say that's not really what we're
talking about because it's so easily just separable and one is just, you know,
don't watch the screen as it's playing in the background. Maybe.
So that is a layer of complexity. And my question would be do we get a return
from that complexity that's worth the cost? So maybe we would. You know, I
just want to have that conversation. But the way I want to think about it adds
some factors that copyright law doesn't typically consider right now. One factor it
adds is making sure the amateur creator is able to create legally. A second
factor is the complexity of the rule to -- for any ordinary person to understand.
Add those two together into the mix and then we're going to strike different
balances.
This is supposed to be the last question right here.
>> Question: I was just wonder are there any implications to the word reference
to, yesterday the Obama administration (inaudible) rally as they (inaudible) any
implication, you think, in terms of how things are going to play out?
>> Lawrence Lessig: I don't know. I mean, there's a -- this big meeting we
were just talking about before, about the fact that a whole bunch of the
Department of Justice people are -- have a practice that was very strict copyright
enforcer practice. On the other hand, Obama was right from the very beginning
embraced creative comments with licensing in his own site and supported open
debates and the transition site was CC licensed and WhiteHouse.gov, CC
licenses all user contributions and explicitly says anything that White House
creates is not protected by copyright law. So there is a recognition inside the
administration about striking the balance. And I think that those two things
together is potential. Right? Because the balance that has to be struck is one
that tries to distinguish between places where efficient, effective control is
actually necessary. So, you know, producing $100 million Hollywood movie on
the first one to concede control over distribution of ad is absolutely necessary
from places where it's actually destructive.
So, you know, giving government officials copyright control over their stuff is
destructive and it's not like this is even hypothetical. In the Bush administration I
was involved in a case where a filmmaker wanted to take 60 seconds from an
interview on Meet the Press, where the President was explaining why he went to
war. And of course, capturing the President explaining this was an essential way
of capturing just how empty his reasons were. Right? So they originally went to
NBC to ask permission to use this in their film. NBC said no and when the
licensing agency said why, the first response NBC gave was, it doesn't make the
President look very good. And of course very quickly NBC backed down from
that as the reason they were saying no, but you can understand the kind of
implicit bargain that's being struck now. Like, okay, I'll come on your show, you
protect me when I'm on your show.
Well, I don't mind if Britney Spears strikes that deal. Right? I would hope she
would do it more often than she does right now. But the idea that the President
of the United States gets to use copyright law indirectly to protect him from public
criticism of him as the President is ridiculous. It's outrageous. It's a total misuse
of copyright. And until -- what's necessary here is that the copyright supporters
begin to be much more articulate and forceful about the need to be limited in the
deployment of copyright and use it where it makes sense.
So one of the best things of the campaign was not actually Obama. I mean, I
was happy about what Obama did, but it was John McCain. John McCain
became a copyright radical. He sent this extraordinary letter to YouTube, I think
near the end of the campaign criticizing YouTube for their knee-jerk takedown
response to people's complaint about copyright infringement in these videos.
Right? Because they had the system where three strikes, your channel is taken
down. Right? So that means McCain's channel could have been taken down if
three times people complain about copyright infringement on this channel.
Now, of course, in the middle of a campaign, to have your channel taken down,
even for a day is disastrous. So he said, come on, these are all plainly fair uses
and you need to exercise judgment about that and YouTube's response was, not
our job to exercise judgment. It's our job to simply do what the takedown notices
say. So he began to recognize, why, of course he sports copyright, but what we
need to do is support the right balance for copyright. Not just the idea that
perfect control is what copyright must entail.
I'm grateful for your time. Thank you very much.
(applause)