Lessig On IP Protection, Conflict

cdlu writes "According to NewsForge [part of OSDN, like Slashdot], Stanford University law professor, author, and Creative Commons chairman Lawrence Lessig sharpened the definition of the ongoing legal struggle over intellectual property while talking at the Open Source Business Conference on Tuesday. According to Lessig: 'Contrary to what many people see as a cultural war between conservative business types and liberal independents, this is not a 'commerce versus anything' conflict. It's about powerful (business) interests and if they can stop new innovators'."

Comments

A threat to "developed nations"

[bizcoach]

According to Lessig,

Growth in creative industries such as radio, television, movies, publishing, music -- and, yes, software -- is threatened when "a few powerful interests control how culture develops."

Hence, if we in the so-called "developed nations" don't fix our legal systems, third-world countries, where "intellectual property law" cannot be enforced for lack of a functional legal system, will become the leaders in creative industries, including IT, right?

Re:A threat to "developed nations"

[Anonymous Coward]

Intellectual property is an artificial concept, especially now that digital media allows us to make unlimited copies.

It's always been an artificial concept. That doesn't make it necessarily a bad one.

free copies all over the place, and the publisher gets nothing more than a big headache

And the author also gets nothing but a big headache. What a great way to stimulate people into writing....

Re:A threat to "developed nations"

[nathanh]

Intellectual property is an artificial concept, especially now that digital media allows us to make unlimited copies.

Physical property is an artificial concept too, if you care to think about it.

I think what you want to say is that IP scarcity is an artificial concept.

Re:A threat to "developed nations"

[10101001 10101001]

Most authors want their readers to value the work they're reading. It's a sad but true fact that people don't value what they get for free.

I value Linux. I value a lot of the free newspapers I read online. I don't value them by paying money necessarily, but there's more to value than just money.

As an author I want as many people as possible to read my work. But I'd like to get something in return. Not to "profit hugely" but maybe a buck so I can buy a cup of coffee for having given someone a few hours worth of entertainment - which I don't think is unreasonable.

So, you'd be happy getting say $0.59 per book, then? Fine, that's a fine price to me.

Without any kind of IP system (and I'm not saying the existing one works very well) then creative endeavours are relegated to being hobbies, and the quantity and quality of the output will be significantly reduced.

Considering you just want a cup of coffee, it sounds like book writing would have to be a hobby. Without being relatively successful, you can't begin to hope to live off of $0.59/book. In fact, simple math shows you'd have to sell at least 50,000 books just to make $30,000 (which should be enough to live off of).

However, this argument about IP laws sounds just like what pharmaceutical companies keep saying: keep paying whatever we tell you or you might just not get another miracle drug. That's now how economics is supposed to work. IP creates monopolies which authors can use to possible take hostage current or future intellectual works. There's no innate right to IP of any sort, and there's no reason why that sort of conjectured threat should lead to current or future protection for the bearer.

It's the author who's screwed having spent a year of his/her life writing a well crafted piece of fiction only to find there are copies available for free over [insert p2p of choice here] without any recognition going to the author for writing the piece in the first place.

Ignoring that not all copyrighted works are "well crafted", unless people are changing the author's name on the book, the author is getting recognition. It's not money, admittedly. Maybe this same person wrote the best book in the world, but people still overlooked it. Creating creative works is a lot like a lottery: except for the direct results from writing it (feeling better, feeling you've expressed oneself, or whatever other direct justification for writing is), everything else is just luck. Would you want copyright owners to be able to sue publishers over money the expect even though no one's reading it (free or otherwise) because it's crap, but the author thinks it's the best thing since sliced bread? All these hypothetical points try to get around the core issue of whether copyright is doing its job by sugar coating it with the image that authors should be well paid.

The truth is, maybe they should and maybe they shouldn't be well paid. Maybe the result of less anal copyright laws will be less creative works, but copyright is designed as a trade off in free speech for some advancement in the arts and sciences. There's no proof that the extended copyright or even most of IP laws as they stand are increasing the quality of creative works, just the quantity (since more things inherently qualify, and there's a motive to make more of the same stuff that sells). IP laws might cover plagiarism, but then one could claim fraud laws do too (or could be spelled out to be made to). It'd be nice to get more than just conjecture that swings from coffee drinks to something that's a full time job.

Re:A threat to "developed nations"

[Cognitive Dissident]

China and Brazil have already had their eyes opened on this score. They are both large, resource rich countries.


Add India to that list. The Indian government was outraged at a US company patenting Basmati rice. That variety was developed in India by Indian farmers over a period of centuries. But some US corporation has filed a patent and apparently won the right to control the name 'Basmati Rice' and prevent even native Indian growers from using the name or selling this variety of rice in the US! Lots of other countries in the world are getting fed up with Stupid Lawyer Tricks in the US.

http://www.biotech-info.net/basmati_patent.html

http://www.poptel.org.uk/panap/latest/lost.htm

Re:A threat to "developed nations"

[GlassHeart]

future R&D is halted ... unless you expect the pirates to do R&D in the future.

You are sorely mistaken. Americans have been very innovative, but do not have monopoly in innovation. I very much expect the pirates of today to be the innovators of tomorrow.

In the 1980's, Taiwan was producing illegal Apple ][ clones (not just using the same ROM and DOS code, but literally the same plastic cases, some even with off-color Apple logos!). Today, Taiwanese businesses are some of the largest producers of computer electronics, including crucial parts like motherboards and monitors, and of course less crucial parts like keyboards and mice. Along the way, it has produced world-class brands like Asus, Acer, and others. These developments were funded (both in the money sense and the talent sense) by initially infringing on IP.

Re:A threat to "developed nations"

[mpe]

Is there a reason you substituted author for publisher? You do realize that it's the author who actually writes the books.

This issue goes right to the heart of copyright. The concept was originally a permission given by the state to a publisher. The idea of a copyright being about authors is more recent by something like a century.

Most authors want people to read their books first, profit hugely from them second.

If they can't published niether will happen :)

It's the publishers that are screwed when they make 10,000 books and no one buys them because of free copying online, not the author.

It's just as possible that few people will buy them because they don't want to read them.
It's probably still possible for the author to get screwed, but that is a lot less liklely than the situation with musicans.

It's the publishers who front the investment, and it's the publishers who are bitching so much about IP laws being violated because it ruins their monopoly.

At the end of the day publishers are "middlemen".

Re:A threat to "developed nations"

[Mateito]

> just like movies the US is defininately way in
> the lead

If I read this correctly, you are commenting on how the US movies are leading the world.

I think we are starting to see the end of the US dominance of movies. Essentially people are running out of ideas. For every "Finding Nemo", "Lost in Translation" or "Mystic River" (the three killer US movies on the last year IMHO, there is a:

The Ring - Remake of a recent foriegn film, in this case "Ringu", Japanese flick

The Italian Job - Remake of 60s or 70s TV show or movie, in this case "The Italian Job" from 1969 (?)

Terminator 3 - Tired sequel to a franchise better left alone.

Cheaper by the Dozen - Known face, known plot, nothing new, happy ending.

The french hit "Nathalia" (I think) has been sold to a US company, who are going to _remake_ the movie with a "big name" American Lead. It seems that the amount of money required to remake the movie is more than the amount that would be lost by forcing US audiences to read subtitles.

Having said that, the success of "The Passion" suggests to me that US audiences are actually more than capable subtitle readers, and that its the studios who are way off the mark. None of the movies I've praised here are "safe movies"... and I think that's why the US is losing ground. People are bored of the latest formula "hit", and are looking for something a bit challenging.

Matt

He sometimes doesn't sound so revolutionary

[ObviousGuy]

Creative people should mark all of their original content and allow it to be licensed according to their own will. To do this, they should register it with a qualified third party and allow it to be available for public review, so that the broad concepts of their creativity spur others on to additional creativity, he said. Every artist should share something in the public domain to some extent, Lessig said, while making sure that the work as a whole is protected as to its ownership.

Like licensing agreements and patents, Lawrence?

Re:He sometimes doesn't sound so revolutionary

[drsmithy]

That means, to me at least, that a 58 year copyright is probably not unreasonable (in comparison) as thats 75% of the life span of a typical person today.

Uh, copyright term should have *shortened*, to reflect the ever decreasing costs of reproduction and distribution. Remember, it's meant to be a way to make a reasonable amount of money off "intellectual property", not give some entity monopoly control for a proportion of a lifetime.

Personally, I think copyright length should be determined by ROI, not an across-the-board fixed length of time. Once the cost to create a work has been recovered, that work should enter the public domain - its creator has received their "reasonable restitution".

This has happened before

[ewn]

According to this wiki Hollywood was built this way:

"Thus, filmmakers working in California could work independent of Edison's control, and if Edison ever sent agents to California, word would usually reach Los Angeles before the agents did, and the filmmakers could escape to nearby Mexico."

Lessig the Grey vs. Creative Commons

[turnstyle]

From something I sent to Dave Farber's IP:

Given the recent Grey Tuesday brouhaha that followed the release of DJ Danger Mouse's Grey Album, it's worth pausing for a moment to take a look at the Creative Commons:

"We work to offer creators a best-of-both-worlds way to protect their works while encouraging certain uses of them -- to declare 'some rights reserved.'"

Among the rights an artist may choose to reserve when configuring their Creative Commons license is "No Derivative Works," explained in cartoon here:

http://creativecommons.org/images/comics/10.gif

Indeed, the Creative Commons' leading example musician is Roger McGuinn who: "chose the Creative Commons license that maximizes a combination of free distribution with artistic control and integrity." -- note that Roger McGuinn chose "No Derivative Works."

However, the Grey Tuesday movement seeks to take that right away. Notably, Larry Lessig (Creative Commons Chairman of the Board) commented in his blog:

http://www.lessig.org/blog/archives/001754.shtml

"Should the law give DJ Danger Mouse the right to remix without permission? I think so, though I understand how others find the matter a bit more grey."

"Should the law give DJ Danger Mouse a compulsory right to remix? That is, the right, conditioned upon his paying a small fee per sale? Again, I think so, and again, you might find this a bit less grey."

So, what exactly does Creative Commons mean by "some rights reserved" -- would it perhaps be more accurate if they said: "some rights reserved until we can cook up a new compulsory license to take those rights away"?

Re:Lessig the Grey vs. Creative Commons

[MunchMunch]

"That's the general problem with Lessig, EFF, etc. They're just as bad as the RIAA when they act as if they're speaking on behalf of artists' interests.

You'll have to forgive me, but I really don't see what the problem is. Lessig supports copyright to a limited extent, but (as evinced by his implicit support of unimpeded remixing) he believes in advancing creativity more than copyright as an end in and of itself. His words and actions on his blog support this, though it may indeed be argued to be counterproductive to support a CC license that allows a 'no derivative' clause. However, that isn't your argument.

Your argument is that Lessig wishes to empower the 'artists' via a 'no derivative' CC clause, but contradicts himself when he simultaneously argues for a cultural freedom to 'remix' art. In that sense, you're confusing speaking on the 'artists' behalf with speaking on the 'publishers' behalf. (I speak of these as different roles -- I don't deny a single person may often take on both.) Lessig wants to empower the artists by expanding creativity, and that is the sensible aim of copyright law.

However, a 'no derivative' clause is a negative clause. It prevents creativity from taking place while a lack of a 'no derivative' clause does not prevent or preclude the original. If someone remixes a song, the original still remains. The 'vision' is not compromised unless someone tries to pass off the remix as the original, which is far short of the extent of the 'no derivative' clause.

Finally, yes, Lessig appears to support the CC license. However, this is not a human rights issue, and as I said, it may make sense for him to support the license if the net effect is positive for creativity.

If he has explicitly said "I support the 'no derivative' clause," (and if so, I would love to see it) then he's contradicting himself. Otherwise, there's no reason to think he isn't just being pragmatic and supporting a license whose positive aspects outweight the negative.

The following is public domain.

[Thinkit4]

Given that an idea, in all its forms, can be independently discovered, the idea itself is never created.

A big step in the right direction...

[ShieldW0lf]

...would be to prevent the transfer of ownership or licensing rights.

Want to keep it, fine. Sell copies at a profit, fine. License it out for commercial use, fine. Sell ownership to the big immortal mulitnational that owns everything else? Sorry, not permitted.

This doesn't kill the distribution and marketing industries, just puts them in the service of the artists, instead of the other way around. Bang, no more monopoly is possible, yet artists get rewarded.

There would no longer be a motive to remove things from circulation the way the big media companies do... that only comes from the fact that song a and song b are competing for market share, but media company x owns both, so they kill b to focus on a. If ownership fell only to the creators, they'd be more inclined to give away the non-marketables as a way of promoting themselves.

I leave the excercise of how to deal with collaborative works for someone who isn't sleep deprived and fuzzy-eyes from too much coding :P

Illusion

[Mark_MF-WN]

Unfortunately, America will never LOOK like a third-world nation. Rich Americans are still making all the money, so America will still have a high GNP. It's just the other 99% of US citizens who ultimately suffer. And since most Americans are quite gullible, it'll never occur to them that their poverty is not of their own doing.

I.P.?

[Roger Keith Barrett]

"Intelectual Property" is such a crap term, which is why I always put it in quotes.

How can it be property if I still have it after I sell it to you?

How can it be theft if I still have it after you've taken it?

Maybe the language isn't there yet, but "property" and "theft" are not terms that make any sense in when it comes to copyright and patents. All the property talk does is confuse the and prejudice public opinion. The term "I.T." needs to be abandoned if there is ever to be any smart public debate about this.

Expanding Creative Commons

[Anonymous Coward]

There are indications that this struggle, which has mostly involved copyright, is about to move more heavily into patents. One well-placed patent, for instance, could do more harm to Linux or open source than a thousand alleged copyright infringements. You can't just rewrite the code to get around a patent dispute.

It might be a good idea for Creative Commons or a group like them to move into the patent arena in a big way. Two ideas would be particularly helpful.

1. A "prior art" registry. It would include ideas their posters think is new with bullet-proof date stamping and public access. This would keep those ideas from being patented. It would also allow people to post descriptions of prior art they are aware of dating back several decades, along with contact information where that prior art can be documented. That could be used to fight dangerous existing patents or patents-to-be. With a bit of pressure, patent office examiners could be forced to use the database before issuing a patent. It would save a lot of grief.

2. A open source patent portfolio with a GPL-type license. Corporations could acquire the right to use patents in the portfolio in exchange for licensing the use of their patents in open source. This would approximate how corporations like IBM avoid patent suits. Patents could be obtained by donation or by developing ideas into patents.

Acting now could save a lot of trouble later.

--Mike Perry, Inkling Books, Seattle

http://www.InklingBooks.com/

Re:this is a difficult issue

[EndlessNameless]

The major point about this I would mention is that it's necessary to provide some means of financial reward to creators so they can create at will instead of being compelled to take regular jobs. That way, truly talented creators will be able to do so full-time if desired, and other people who are either not as interested or not as talented could still receive something to encourage them to produce.

While the most recognized creative endeavours probably were not done with a profit motive (or at least not much of a profit motive), there are a lot of things that people have come up with simply because they needed to find a way to pay their bills (or maintain positive cashflow, in the case of those unlucky enough to be corporate drones :) ).

Re:Is it our right to restrict the use of our idea

[syousef]

That's why compensation is tricky. You'd need to find a way to ensure that your competitor could copy the idea but only by sharing in the cost of the development and giving you a cut of the profits too.

I've suggested before on /. that perhaps allocating a percentage of the cost of manufacture of an item to all contributing contributors ("patent"/"copyright" holders) - a tax of sorts but not one that goes to the government. The tricky part would be administering this.

Re:This is how copyright currently works

[djradon]

The "full rights" of which you speak are described in the LOC's "Copyright Basics Circular. IANAL, but the biggest benefit I see is:

If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

That's disgusting to me. What if I'm too poor to pony up $20 for each comic book I self-publish? With Creative Commons, you can do it for free and get legally enforceable license terms. Theoretically.

"You can do this now. If you want to recreate a painting of mine in poster form I can give you the rights to do so."

Lessig's point: Encourage a creative community where people can share their work however they want and still own it in a contractually enforcable way without paying lawyers or the government.

BTW...
"As has already been mentioned, ... " indeed we have parallel threads going here. The other one is much more interesting: rick hunter points out that Lessig thinks it may be impossible to waive your rights to a work.

Re:*YOU* Can Change the Copyright Laws

[Anonymous Coward]

As soon as this came close to passing in Congress, and the President were to sign it. America would experience its first Coup-de-tat, and we would become a dictatorship run by the mega corporations.

Assuming this has not already happened.