Lawrence Lessig, ``On Rebuilding a Free Culture''

Radcliffe Institute for Advanced Studies, 2004-02-12

Notes by Matthew Sachs:


Questioner: ``First amendment. Eldred vs. Ashcroft - no 1st amendment in copyright. Supreme court arguments went after 1st amendment. How does the 1st amendment ducktail with what you've been discussing?''

Lessig: ``Eldred was a lesson in how far law professors are from law. When Congress comes in and says 'you may not speak in the following ways', it's obviously a 1st amdmnt issue to us. What was clear 5 min into argument was that that was an incomprehensible idea to the Supremes. How is it possible that a law could be constitutional under the copyright clause but not under 1st amendment? I responded smartly that if something is unconstitutional under the 1st amendment, it's already unconstitutional. It was clear that they perceived copyright as totally removed from the 1st amendment. They did say that the lower court was wrong, copyright law is not totally immune from 1st amendment scrutiny. But so long as Congess does not change 'traditional contours' of copyright, no further 1st amendment scrutiny is required... but they HAVE changed traditional contours! It used to required formal registration and renewal. So there is an opening, in the context of the 1st amendment, to say, 'fine, you've set the rule, if they don't change the contours, 1s amendment scrutiny doesn't apply, but they have, so it does.' By statute in 1992, Congress auto-renewed copyright term with no requirements. In a context where we knew that 85% of owners would never renew, if you had to evaluate that type of extension under traditional 1st amendment analysis, it must fail. Yeah, they didn't get it... but the silver lining is that it's now refocused us on what exactly the problem is. If you're going to radically remake the law, prove that it continues to satisfy 1st amendment requirements. That might be a sensible principle - but so there is a substantial review which must now happen.''

Questioner: ``Building on that point - as I understood Eldred decision, traditional contours they thought about were ?? dichotomy, fair use stuff. ???? fair use. Under our int'l obligations, that we sought to impose on other people, not supposed to have exceptions on copyright except ??? Obviously unconstitutionality of ??? limits - bear with trade sanctions over time?''

Lessig: ``There are people who are doing something about it. Me, I focus debate away from the fair use issue. That hides too much of the story. People frame it as 'are we preserving traditional fair use?' Fair use was always a narrow exception against background of totally unregulated uses of copyrighted works. Before, when I took a book and read it, I could do it not by virtue of fair use, but because reading was unregulated. When I gave you a book, I was able to do it not because of fair use, but because it was an unregulated use. Fair use was a way to deal with the sliver-thin cases where use was presumptively regulated, but there was an important reason for excepting it, whether related to transaction costs or other positive values. Presumptively, now, every use is regulated use. If you have to build freedom on top of the thin sliver of fair use, we have no freedoms. Other part is, yeah, court made it sound like traditional contours of copyright were idea/expression distinction and fair use. But what is the tradition of those two things? How old are they? They're totally modern constructions. Traditions of contours are things I was describing here - formalities, term limits, to the point where it served commercial interest. Where there's no commercial interest, there's no point in continuing the copyright burden. Obviously, having lost so decisively, I'm not betting much on winning in the Supreme Court. What that signaled is that this can't be won on a legal context only, it's a cultural battle. It has to be won by millions of people recognizing that something has gone fundamentally wrong and insisting that politicians respect freedoms, not just judges. That's why Creative Commons and the Electronic Fronteir Foundation, advocacy, awareness, and recognition are much more important than three Supreme Court judges waking up.''

Questioner: ``In terms of trying to find different motivations for it, do you see much action in terms of theological movements - trying to engage politically active religious groups to embrace the ideas of Creative Commons?''

Lessig: ``That's something I've never thought of. There are connections to similar values. I hope so, but I'm not the one who's going to be able to do it. Historically, churches have been on wrong side of the issue, a particular couple of churches, trying to protect secret documents. The Church of Scientology. A more common link, though, to broader range of theological movements should support this. Building the movement as broadly based as we can frame it, that's what we should do. The awful way that this movement has been spun - there was great piece with an awful character in the New York Times which dubbed it the 'copyleft movement'. Copyleft is something Stallman started. Plus, this is not left vs. right. The most important briefs in the [Eldred v. Ashcroft] Supreme Court case were by conservatives. All wrote that this was absolutely outrageous abuse of Congress's power. Not right vs. left - old vs. new. Opportunity for new creators and innovators to build on top of cultural past without powerful old interests restricting. Sounds like a Republican idea. Recognize this rhetoric in republican and democratic speech, but it's a mistake.''

Questioner: ``re: preserving reach of copyrights when they have commercial value, every time I hear this, I think 'well we could use these new methods to preserve the original Framers copyright laws, but we have this new society where books can be duplicated for free, but that's a new tech that Framers didn't envision.'''

Lessig: ``Yes. There's a good reason to sustain academic skepticism about necessity of copyright in all contexts. A Supreme Court justice wrote that books in academic context don't need copyright protections. This is not a new skepticism. We should reignite it. I'm not confidant enough to take the more extreme position - it's not prudent to say that there's 'no need for copyright.' I think there will be alternative ways to make money, we should encourage it, but I do believe that there is a role for copyright, and the role of copyright is as a limited-time monopoly to allow an exclusive return for certain kinds of projects. Not everything. Why does a law review article need a copyright? If we could be critical about where it's needed and restrict it to where it's doing good, if we could have Nixon's copyright laws, 85% of the works created in last 35 years would be free. The public domain would be 35 years away. 1960's in the public domain! There'd be an extraordinary potential for creativity. But we're like the East Germans now after fall of the Belin Wall - we can't even imagine what it would be like to be free, how could you produce creativity except by CBS beaming it to you and policing it? We must begin to build technology and freedoms to show people, when they see enough examples it clicks. They see that there's a free-speech and free-culture reason to support these freedoms.''

Questioner: ``You touched on ideas of international basis. With existing treaties such as Berne, a lot of these laws are passed to bring us into line with international treaties. How much is limited to trying to change domestic copyright law, local changes?''

Lessig: ``Great question. When history is written, the grotesque story of the U.S. will be told. Let's not forget. We were born a pirate nation. Until 1891, we didn't protect foreign copyrights at all. We thought that developing nations develop by taking foreign ideas. Dickens doesn't need anything from us! We've inverted that completely - not just that it's imprudent for developing nations to not protect intellectual property, but immoral! When you talk about books, it's esoteric. Turn to drug patents. During the Clinton administration, South Africa tried to deal with AIDS, like the U.S. does with equivalent problems, via compulsory licenses so citizens can afford drugs. America pushed to stop this. Because of the idea of the sanctity of intellectual property being violated by compulsory licenses to save millions of people. You know, I think it'll be my child, but maybe his child, who looks back and says 'Who are you?! In the name of intellectual property, you stopped drugs from getting to millions of dying people? ?!?!' I don't know what our answer will be. There's a handful of people out there - there's a great book by Peter Drahos, 'Information Feudalism'. It describes how TRIPS got passed. 50 people knew what it was when it was passed. Those people made international structure that in the name of rule of law we must enforce. Not like we think that rule of law is important in other contexts - why here, so rigorously? We have more stringent restrictions than TRIPS requires on developing nations. They sign TRIPS, the Doha accord should give them special protections taking into account their developing status, but we individually enter into binding agreements with them saying that unless they pass more restrictions, we deny them access to our markets. The international system has been more humane than we'd like, we use power to force e.g. Chili to pass laws forbidding them from building on our ideas. Long term, this plays into 1000 other things that are going on in the world. I was astonished at an international conference at the anger which the developing world directs at us. They're right. 'What possible reason do you have to do this to us?' It's a great question. What possible morality can we assert?''

Questioner: ``Creative Commons vs. existing copyright laws. Someone who had copyright on a book or play, can they transfer it to a Creative Commons license, for instance when they've done that can they revoke the Creative Commons license.''

Lessig: ``The Creative Commons license doesn't force giving up copyright. You keep copyright, but attach a license saying 'you have these freedoms'. So you know you can do some things without asking for permission. There's a complicated question of whether it's a contract or a copyright license. The basic structure is that this sets the terms that you're pretty confidant that you won't get sued. Anybody can take all of their works and make them available under this way - we have devices for doing more, placing works in the public domain. Someone wrote a book about Secretary O'Neil book, and released all of his supporting documentation into the public domain with our device so that reporters could check his facts. We have devices enabling different forms of permission grants. We have a range of options, a spectrum of rights. All overlays on the background of copyright. Like the FSF and the GPL. FSF and the GPL are not against copyright. They rely on it. Ground is copyright, licenses are signal of freedoms.''

Questioner: ``Role of code in regulating behavior - your thoughts on proliferation of DRM?''

Lessig: ``I spend most of my time being nice to computer scientists and mean to lawyers; this is a classic example of computer scientists trying to solve a problem first, since they're paid to, without thinking of the long-term consequences of building DRM architecture to control distribution of content. Hillary Rosen was complaining that there were not yet any systems for distributing music that were totally cross- platform compatible. I said, not true, there was, called Napster. The only reason they don't work cross-platform is that we don't have cross- platform DRM, little hives of DRM. DRM takes a universal platform and turns it into the Tower of Babel. And it doesn't begin to account for ways in which creative work can be remixed and reused given these new technologies. I wanted to show you this movie, where a kid was practicing fighting with a stick, and people made it into a Star Wars light-saber parody, but it's in Windows Media format, and it can't be imported into Powerpoint, because of DRM! There was no commercial interest, but DRM got in the way. The most important DRM problem is the ''analog hole``. Imagine a perfect DRM system controlling the digital display of a movie. That doesn't mean you can't take a camera, and take pictures of the movie screen. Lots of people do. HBO has announced a great new technology to prevent Sony cameras from recording movies from movie screens. If you're thinking of protecting Hollywood, that's great, but imagine a home movie with a kid walking in front of the television set, and the camera blacks because of the TV in the background. Why build the system to think of the 5% instead of the 95% that this technology would enable? And yet that's what DRM is doing... the Creative Commons answer is to say 'separate DRM from Digital Rights Expression.' We have a simple way to express what rights we're giving away. We don't enforce it, and in fact forbid using certain technologies to enforce it. We believe that if ??? don't need a dollop of DRM on top of there. If we don't get 100 million link-backs [to the Creative Commons license] in 5 years, we'll have DRM in everything, and things will be 100 times worse than even today.''

Quesitoner: ``??? database systems ???''

Lessig: ``Yeah, it never ends. I was so happy that we were reminded of my optimistic days... Yeah, Europeans have adopted database rights, and the U.S. is about to vote on the same bill. What that will do is take the copyright regime, which is a complicated regime built by lawyers to benefit lawyers, and carry it over to database structure. What does Google do in a world of database rights? Must they figure out, every time they spider, if there's a database involved and if they've gotten permission to do that? What everyone who doesn't have certain vested interests has been saying is that there's no proof that this is necessary. There's no dirth of databases out there! There hasn't been a slowdown in database production. This is a classic example of law rushing in to solve something that's not a problem, to protect a certain class of people. Many people are motivated to get resistance to this going, but in the context of a political field where the most important question is whether Janet Jackson flashed her breast intentionally, it's not clear that there will be progress.''

Questioner: ``Analogy: Elimination of inheritance tax, like passing on copyright to people who didn't do it, expands benefits forever. Arguments, most extreme example, AIDS in South Africa, arguments are #1: if you insist on eliminating copyright protection for beneficial drugs, companies lose incentive to produce drugs. On the other hand, eliminating protections solves the problem by making one particular group, drug-makers, pay for it. If you tax everybody to pay drug companies, how much profit should they make?''

Lessig: ``I agree, great question. Helps make clear something that I didn't - so there's one way to approach, binary way, if you criticize drug patents as applied to South Africa, you're against drug patents. I'm not. I got in a lot of trouble for writing in Wired that I think they're necessary, without some massively different system. But let's assume there's no massive reform - drug patents are really important. But there's a space between zero and one in this debate! Understand discriminatory pricing that's available across different territories. The rational thing is to charge Americans lots, South Africans not much. It's a rational economic policy for a monopolist. They would do something like that if they weren't afraid of getting pulled before congressional hearings for discriminatory pricing, asking why they're charging Americans so much. They don't want to be in that rhetorical bind. Whose fault is that? Not the drug companies. Congresspeople. They're these kind of - willful? ignorant? - who are playing up to political short-term advantage at the expense of the least-advantaged people in the world. Like story I started with, 50 years from now, don't know how we'll answer to our kids...''

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