Interview With Lawrence Lessig On Future Rights

tres3 writes "In an interview with the O'Reilly Network Mr. Lessig discusses many current issues that may have future legal implications. He starts with MGM's request for Certiorari in the Grokster case. His conclusion is that ReplayTV was forced out of business by a legal challenge, not a legal victory. Lessig continues on to discuss, among other things, The Creative Commons and their new Sampling License and how it may affect the way that some movies and music, that contain samples from other sources, are made in the future. From the article: 'So the same act of creativity in some sense, you know, taking, creating, mixing out of what other people do, is legal in the text world and illegal in the digital media world.'"

Comments

p2p company liability

[FidelCatsro]

"Lessig: This is not a constitutional question in the Grokster case at all. The Grokster case is just a question of whether the court should apply a secondary liability on the manufacturer because the product was used illegally by a customer."

Out of intrest , are the makers of guns liable.
if not then why not and then why should p2p companys, With a gun you can break far greater laws than with emule .

Re:p2p company liability

[mankey wanker]

Oh, you're not paying attention...

The violation of commercial property rights is the worst possible crime imaginable. Taking a human life merely decreases the surplus population.

Corporations are eternal. People come and go.

Re:p2p company liability

[rthille]

No, you don't understand. Killing people^H^H^H^H^H^H consumers reduces corporate sales and profits. That's the reason murder is illegal.

Uh oh

[fenodyree]

This is resampling the digital text of the alphabet, am I infringing? I often ponder, Opps, there is someone at the door, hold on.....

Ironic

[AntiPasto]

... how this article for me loaded with an audio-enabled ad for Vonage that created a derivative work in my headphones over top of Radiohead.... hrmm... Did they have a license to do that in my ears?

Customers kill producers

[page275]

It sounds just like: Every kitchen tools producers need to be sued because some of their customers use those tools in 55% of murder cases.

Re:Customers kill producers

[Frodo Crockett]

Sounds like we need to outlaw everything that can be used to commit a crime. I'll miss my opposeable thumbs (and other parts of my body), but I'm sure society will be better off.

Unconstiutional...

[tidewaterblues]

For quite some time now I have been of the opinion that the prohibition of the creation if derivative works that copyright imposes is outside of the understanding of the original concept, and in addition to being insainly dangerious to society, is also unconstituional. ... Actually, I should qualify what I just said, I am not just of the opinion that the prohibition is unconstitutional, I believe it is, in fact, a direct violation of the Natural Law. It is, in fact, morally evil on some level to prevent other's from re-interpreting pre-existing creative-thoughts into their own, substantially new ideas. I may be completely alone in my views, and I appreciate that they do not mess with the common-sense morality of our culture (cf. authors and Movie rights, for example). But I do think it is a place where discussion can begin.

Re:Unconstiutional...

[whitespacedout]

Well, you and I seem to be of the same conviction. I am sure there are many more people around like that on Slashdot

What you seem to be suggesting is that evolutionary pressure works against this kind of prohibition, and hence it is dangerous. You did not elaborate on why it is dangerous, and I would be interested in hearing your take on it.

I would argue that the reason restrictions are dangerous is because they fight against things that would otherwise naturally evolve. If you fight against evolution, you fall behind. If creative thought is restricted, then it will flourish elsewhere and your own culture will fall behind. If you restrict an economy, your economy falls behind. It is no coincidence that the countries with the best quality of life are also mostly the freest. (Actually, that link is a bit of a can of worms. it is a lagging index, where past achievements and good governance count. And Singapore is a remarkable and illustrative special case - free-market under a benevolent dictatorship. Let's not get into that tangent.)

Anyway, so the danger of restrictions is that they cripple progress in the long run. So, because of this danger, I believe restrictions as government policy should only come about in the rarest of rare cases, AND then only with a safeguard of constantly monitored good governance, AND only in cases where progress may otherwise be impeded. Patents and copyright of derivative works are bad restrictions because progress in the long term is impeded by having them.

Lawrence Lessig != Gotthold Lessing

[Tripax]

Whenever I see Lessig in the headlines, I always think of having to read "The Three Ring Parable" in German class. Luckily, Lessig talks a lot about making a collage of different ideas in terms of technology, While Lessing talked about making a collage of different ideas in terms of philosophy (or more precisely, religion).

In any case, I would like to draw out the comparison a bit further. Nathan the Wise was Lessing's play in favor of religious toleration, expanding what was allowable thought at the time. Lessing may have been wrong about a lot, but pushing that envelope was a great thing. Lessig too risks his reputation by pushing the envelope. In the future, we will probably see intellectual property law very differently, thanks to the discussions going on now.

(from the interview) . . . imagine a group of butchers who've spent their lives dealing with cut-up meat. That's the way they understand how to make money, to cut up meat and sell it in the most efficient way. And then they come across a racehorse and, of course, their first intuition is, here's a valuable resource--we'll cut it up and sell it in bits. But all of us recognize that the racehorse is more valuable without being ground into this system of butchery if it gets to be used in this different way.

And that's the way I think we should think about our culture. Their conception of how to make money off the culture is to cut it up and sell it like pieces of dead meat. And that's of course valuable for butchers, but it's not clear it's valuable for society. If all content is locked in these little separate containers and you have to seek permission to do anything with it, then a huge potential, both economic and social, will have been lost.

The CCL is a great idea, but...

[earthbound kid]

...it's a shame it's necessary. Why is it that if I'm writing my blog, I can take any paragraph of text in the world, quote it, then tear it a part, but if I'm making a song and I sample 1 second's worth of The Beatles, my ass will be in court before the third chord progression?

It's definitely a step in the right direction that Lessig has codified the Creative Commons license, allowing us to make things like Wikipedia and one or two music sites, but really the CCL doesn't give us any rights that we shouldn't already have under Fair Use anyway. I mean, Walt Disney has been dead for 30 years. Why the hell can't I draw Mickey Mouse smoking a joint if I want to? Why is Magnavox still able to get license fees from people making video game consoles? Why does Nintendo still own the D-pad and A+B buttons? And what's up with Apple paying Amazon for one click shopping in iTunes? It's all just so ridiculous.

I recognize the need for some limited monopoly to spur innovation, but it's clear that at this point IP has spun out of control. Thank goodness for people like Lessig, Groklaw, and the EFF!

Re:The CCL is a great idea, but...

[aussie_a]

Why the hell can't I draw Mickey Mouse smoking a joint if I want to?

I believe you can. You just can't disseminate it. I on the other hand can draw Mickey Mouse smoking a joint AND disseminate it. God Bless Australia.

Re:The CCL is a great idea, but...

[danila]

All this is an inevitable outcome of capitalism. If it is already ridiculous to you, a citizen of the United States, imagine how insane and asinine it looks to people outside your country.

In my country all works created before 1973 are in public domain. In my country filmmakers do not get permission to use a trademark in the movie. In my country people sharing files are not sued and only large scale commercial pirates need to worry (somewhat) about law enforcement. In my country there exists for 11 years a ligitimate online library with 5Gb of free books in unencumbered formats, including works of most modern authors.

I am not saying that my country is perfect, I am just saying that for the majority of the people US-like copyright is abhorent and they have no respect to it.

As for your sad complaint about the necessity of CCL, I fully agree. I curse the day I decided to become a Wikipedia (which, BTW, uses GNU FDL, not CCL) editor, because now I became conscious of what I copy and what is the legal status of it. Not that it prevents me from pirating music/movies/books/software, but I'd rather not think about it at all.

He who has the gold, makes the rules.

[Mr Ambersand]

At this point it is the "copyright holders" who have the gold, and it is they who are making the rules.

This is a state of affairs which has no hope of changing (look at what is going on with the supreme court and with the EU and the patent fiasco); learn to live with it.

There's no alternative.

Only in America

[Kip Winger]

The reason the American software industry is going to lose within the next 20 years has to do with the fact that lawyers, due to the American "justice" system, are bringing whole new levels of bureaucracy and stifling to the information and software industry as a whole by trying to apply outdated theories of legality to a dynamic industry. Companies shouldn't be forced out of business simply because of fears of legal action -- it's outright murder of creativity.

Eventually, things will become so draconian that companies and independant (often open source) developers are afraid to develop software in America, from fears of breaking things like the DMCA or being charged with "Software Patent Infringency" that they'll have to create new silicon valleys elsewhere in places that don't care.

Europe would be a nice setting, depending on how that turns out, but who knows? Bright young programmers could be fleeing persecution for their works in the USA to set up shop in Bangalore, where they'd probably be able to live like kings. Either way, the way things are going, only monolithic corporations will still be putting out software.

If the US government decides to ban the sale of what everyone else in the world is using, then they'll only fall behind in technology overall...

I think this is appropiate here ....

[argoff]

A Bitter Protest Against Copyrights

If they said there was no incentive to do good things unless the government could choose your religion ... or they said there is no incentive to grow food, unless farmers could rip up your garden ... most people would see these as the awful values that they are. But if they say that there is no incentive to make beneficial or creative works without the power to restrict what people copy (copyrights), then all too many people just take it on faith. They don't even question it, as if incentive makes rights, as if society would fall apart without them. But just as much of the Renaissance happened without copyrights so should the information age.

Calling copyrights "intellectual property" is intellectually dishonest. The moral and historical foundation of property derives from mutual respect and the fact that not everybody can posses something at the same time. The foundation of copyrights derives from kings who granted publishers monopolies in return for not publishing bad things about the monarchy. Copyrights are about control, censorship, and not a free market property. In fact, they cheapen property rights by treating things that have natural limits in supply such as food, shelter, and medicine like information that does not.

Worse, is how people who copy are slandered with names such as "thief" and "pirate", as if copying was akin to boarding a ship and murdering people. They are even accused of stealing food out of the mouths of starving artists. Yet these verbal assaults hide a cold and calculated lie, the one that says "copyrights benefit creative people". The truth is that for every artist or writer that has made it "big", there are unmentioned thousands who copyrights haven't helped a bit, hindered, or even destroyed. Some are even bared or sued from sharing their own creations in public, others die with the world never truly knowing their artistic genius as the mass media drowns them out. Most creators are far better off sharing and distributing their creations freely to make a reputation for themselves. Copyrights not only cause them to be drowned out in a sea of hype, but do so deceptively.

However, these aren't the only problems related to copyrights. They are just a sample of many that are constantly blown off, glossed over, or ignored. Like the failures of Hollywood culture, the failures of big media to offer quality material, the failures of the market to offer competitively priced books for college students while tabloids are dirt cheap, and massive anti-trust behavior in the software industry to name a few. Their hypocritical pleas like, "how will we make money without copyrights?" is like a mobster asking "how will I make money with out victims extort?"

The burdens of imposing copyrights might have been bearable a quarter century ago when the biggest issue was copy machines. But today in the information age there is no technical distinction between copyright content and free speech content. Information is so easy to copy and manipulate, there can be no "middle ground".Our society must make a choice: Our communications will either half to be monitored or free, our privacy will either half to intruded or protected. Our speech, writing, and free expression will either half to be abridged or unabridged. Any institution that has the power to control one, must have the power to control all. Copyrights are like a vine that will never stop growing to choke off our freedoms until we cut it of at the root!

Consider parallels to other periods of transition like the industrial revolution:

History teaches that during the 1800's there were many people who believed that the entire meaning and purpose of the industrial revolution was to leverage inventions like the cotton gin to expand their plantations for unlimited growth and profit. Ironically just the opposite was true,the industrial revolution demanded a mobile and skilled workforce.

First, they responded by making

Re:I think this is appropiate here ....

[mrchaotica]

Wow, what a great essay! Do you mind if I print it out and distribute it?

By the way, it could use a little editing -- in the 5th paragraph, it should be "Our communications will either have to be monitored or free, our privacy will either have to intruded or protected," not "half." And in paragraph 11, I think you meant "Just because an institution calls something a property right doesn't mean that it is," not "intuition."

Re:I think this is appropiate here ....

[ramblin billy]

Wow, I envy your certainty. I've come to find this whole question much more baffling. I used to take software and find ways to use it anyway I wanted. It's incredibly easy to find lots of resources on the net that will provide everything from serials to professional quality reverse engineering tutorials. One day I made myself take a hard look at what I was doing. The truth is that if you are aware of the author's wishes, if you understand that in return for the value you receive from using the program he is asking you to abide by those wishes, and that downloading and using the software is your agreement to the exchange, then violating those wishes is dishonorable. I got rid of my jacked, hacked, and cracked programs. Now I pay if I can't live without the code or it's just so elegant I can't help myself. Mostly I use freeware. You know what? In most cases it's really not as good as the commercial solution. How often have you seen the first few versions of an app as freeware and the perfected product gone commercial. Look I know I have just committed /. heresy, but romantic notions of 'freedom of information' and 'the right to copy, share, and distribute information is a right!" are not tautologies. You make many broad sweeping statements, but most of them are lacking in proof or pertinence.

You overstate your opponent's position by suggesting that they claim that there is "no incentive" to produce creative content without copyright rewards. How about less incentive? Can you deny that some very creative works were undertaken explictly to reap those rewards? Many creative processes now require a vast amount of resources - too many resources for individuals to provide. Groups that provide those resources usually do so with the expectation of a return on their investment. It might be nice if they did it with the intention of giving the knowledge away to benefit society, but that's just not the case. Shouting from the rooftops that it should be this way does not make it so. You make your arguments seem devious and weak by not acknowledging the reality that profits from copyrights DO create incentives. Moreover, often the people who possess the necessary personalities to amass the resources are motivated primarily by profit - that's why they have all the resources. Certainly a great deal of creative work is done for other reasons, maybe even the best creative work, but to ignore the motivating power of good old greed is ridiculous.

You also seem to believe that creative content springs spontaneously into being without underlying costs. You say that information does not have natural limits of supply. I say we've got all the creative content we're going to get from Albert Einstein, he reached the natural limit on his supply of time. The fact that the cost of creating must be borne up front, during the process, does not lessen the amount required. It's hard for a man to be creative when he has to spend half his time feeding his family and has to decide between materials for The Project and health care for his kids. On a more selfish note, if I can do something you can't by applying my time and effort, why should you receive the same benefits without sharing the costs? The copyright only gives me the right to set the value on the material, it's up to you to decide if it's worth the price of admission.

Posts gettin' a little long so.....How can someone who possesses 'artistic genius' require the use of someone else's material to express that genius? Isn't it more likely that those that " copyrights haven't helped a bit, hindered, or even destroyed". have more to blame on the quality of their work than their access to someone else's? What in the hell does saying bad things about the king have to do with modern copyright issues? Is it valid to compare the Renaissance, when copies were made at great expense by hand exclusively for the ruling class, and the case of Dave from Topeka, who has 2000 ripped songs on his hard drive and takes great pleasure in giving them to anyone in

Re:I think this is appropiate here ....

[Martin Taylor]

You make the assumption that in a world without copyright content-creators will not be able to gain any monetary benefit from their works.

I say this is flat out wrong. Creative people of all walks of life, in all societies have always been able to make a living. Artists who create things that people like will be elevated in status and supported by those who want to see them continue to create art.

Money spend previously on the sham that is the record industry will be freed up, the same in many other areas. It no longer makes economic sense to continue to pay for records and things that are inefficient, and anti-free market. Imagine the amounts of money and resources spent on content. These resources will be allowed to be spent in new and better ways.

Copyright restrictions on a song or a book are just ridiculous from a free-market perspective. If all of a sudden one day we found a method to create "free" energy, we should move to the new method. Keeping an inefficient production system around simply because it is the way we have always done things and you want to protect the jobs of people in the energy industry makes no sense at all.

When textile mills and outsource-able jobs are no longer efficient or make sense, we simply move to a new system of doing things. Why must we continue to prop up a woefully inefficient system of IP rights that merely serves to restrict a more sensible method?

If by punching you in the face I could cause no injury and also create grains of rice, then punching you in the face would be a grand thing to do.

Taned, rested, ready

[rs79]

This is resampling the digital text of the alphabet, am I infringing? I often ponder, Opps, there is someone at the door, hold on

Mod parent something other than flamebait.
He is making a point in perhaps in a slightly silly way , but still a good point.
Where does it end , if i quote people`s works in a work of my own, am I liable.

It's Oscar (tm) night eve and the MPAA wonks are coked up and have mod points.

I can never decide...

[Anonymous Coward]

I can't decide where we need Lawrence Lessig more... in the White House or on the Supreme Court bench...

Here on the front lines is what it's like.

[Anonymous Coward]

"Eventually, things will become so draconian that companies and independant (often open source) developers are afraid to develop software in America, from fears of breaking things like the DMCA or being charged with "Software Patent Infringency" that they'll have to create new silicon valleys elsewhere in places that don't care."

Excuse me? ... will become?
My dear fellow, with all due respect, you are simply wrong on this matter. The future is here. I am an Open Source developer. And I have a great idea that I'd like to take to market.

I already AM afraid of bringing this to market, due to bogus patent lawsuits, and the financial losses which will result to me personally.

So what can I do? The ONLY way this can happen now in the U.S. is by Open Source. And I need to make certain that I transfer the copyright over to the FSF, as is recommended with the GPL.

Furthermore, I also need to start up a company, incorporate it, and follow all the onerous rules about State filings, stock issuance, Tax ID number, payroll, and whatnot, just to insulate my personal finances. Yes, I could avoid this step, but I have enough personal assets that I really need to do this.

All for a relatively simple and useful solution in a particular niche, which has received a lot of positive interest and some press.

If you want a first-hand look at the negative effect of Software Patents and bogus lawsuits are inpacting creativity on the cutting edge, look no further.

The other sadly amusing side effect is that there is absolutely no way that I could take this via a proprietary route. Back in the 80's and 90's, I could build up a company myself without being forced to go to a VC. Now I can't. I'm positive some two-bit thief of a lawyer would come along with a bogus patent and want some money. I can't afford this personally. And so, the closed-source route is no longer viable for innovation, except on the large-scale level.

What further proof does anyone want at how innovation is being stifled?

And yes, if the EU actually does reject Software Patents, I'm going over there as soon as I can. Not to go the closed source route; but just for the piece of mind.

Yes, I'm worried. And if you aren't (and are in the U.S.), you're either not doing innovative work, or are sticking your head in the sand.

nothings black & white

[blackest_k]

Artistic works and I think you can include software in that definition have a value which is determined by the user.

As a content producer or copyright holder or patent holder your attitude to this ranges from I couldnt careless to sue the dead granny.

The big problem in reality is corperate greed, any exchange of files that they originally produced they see as a lost sale that they should have made. This only makes sense if people have the morals of a corperation.

What it means as a corperation is that your suppliers have no value to you. In physical trade thats seen as footwear manufacturers pay children 50p to produce footwear sold for £50 in supermarkets fixing a milk price below the cost of production, farmers being forced into contracts to supply one supermarket chain then being told the product isn't wanted and it gets left to rot in the fields, At least with our morning coffee we have an idea of how badly the producers are exploited. These are the morals of a corperate world- none what so ever and these are the standards by which we are being judged.

We will never pay for anything which we can get for free only if punitive damages are made against individuals is there any hope for the copyright holders to scare individuals into paying for copyrighted products.

Is this true are we just prepared to take and never pay for anything if we can get it for free or near free if we were corperations not people the answer is yes but we are not.

lets take a look at a legal method of obtaining books software and music and films for free or near free the public libarary should the public libary be sued for damages for the millions of books it regularly distributes to millions if not billions, look at all the lost sales there, or TV perhaps millions of viewers watching films instead of buying them. Lets shut the TV Stations down lets shut the libarys down. These blatent leachers of corperate property.

The reality is that TV Radio and libarys do in fact generate sales for the copyright holders and so does peer to peer file sharing.

Artistic works have no value in themselves, what value has a sound or an image
perhaps the sound of me breaking wind is mine copyrightable for all eternity it is mine I produced it you heard its exquisite tones its delicate textures. so pay me for it then! no perhaps it has no value for you.

People pay for things they value and can afford simple as that the reality is that human beings have an appreciation of an artists labour and will pay for it without being sued if it has enough value for them.

If your making a living using someone elses work and you do not pay them for it then punitive actions are reasonable, What is crazy is that the people who make money from selling fake products, selling 'pirated' copies of movies and cd's are operating freely the mpaa will not come after me for buying a copy of a movie from a guy in a market but will if i download it myself.

Lets just look to the future where copyright is enforced vigourously everything i look at listen too I pay for. well whats going to happen then is i listen to and view a lot less.

See p2p as a marketing tool that actually increases sales not a method of reducing sales.

Does an author see a libary as a threat to sales or a method to gain a following a buying readership if the later what is p2p file sharing other than i big libary.

Music Copyright...

[TruckerTom]

My feeling is if you don't like the way things are copyrited and/or the way a particular industry works, stop using their products. The entertainment industry acts like a drug pusher protecting his turf, or a Mafia guy making businesses in a corrupted neghborhood pay "protection" fees. Take their power away by stopping drug use and/or moving to an uncorrupted neighborhood. The sad fact is that the entertainment industry is making billions of dollars off of mediocre product because they have millions of addicts. It's like fast food -- the fast food keeps getting worse as more and more people eat it.

Lessig vs. Lessig (or, CC vs. remix compulsory)

[turnstyle]

Back during the hype over Danger Mouse's Grey Album, I noted this from 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.

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, Larry Lessig would take that right away, from a post to his blog:

"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 change the laws to take those rights away"?

However

[Anonymous Coward]

the only marker the RIAA have for how much piracy is hurting them is the fall in sales or profit. A boycott will merely make you a probable pirate.

I keep getting hassled by the TV licensing authority for not having a license for my TV. However, their only proof of my having a TV is that other people do.

Overextended Intellectual Property is Theft

[Anonymous Coward]

No really, IP was always supposed to be a limited concession to encourage publishing of art and inventions.
Things that would be in the public domain have had the length of their copyright extended, rewriting the 'contract' after the agreed exclusivity benefits have been enjoyed.
Patents are in a similar position not because of extension but the fact that with more rapid progress after that after the 20 years of exclusiviry they can be irrelevant.
There are a whole raft of inventions that cannot be made because it uneconomic to liscense all the technologies involved and art that cannot be made because either rights will not be granted or are too expensive. Documentaries and Modern music most obviously suffer a lot from this because they directly sample things. Clasical composers though have run afoul of such things as they sample melodies to compose their works and Bebop and Jazz with its standards probably would be unable to evolve in todays aggressive climate.
Even worse than cripling the evolution of human culture Intellectual Property inhibits research into medicines that could save millions due to having to liscense many different patented genes - to do basic research into breast and other cancers. These Genes were not 'invented' just sequenced - imagine Newton patenting Gravity and you see how wrong this is. It is not a cost of recouping research costs, it is more akin to 'cyber-squatting' the human genome.
Intellectual Property impedes progress, it inhibits the economy, it is not the free market it is the creation of monopolies with incredible penalties associated with those guilty of copyright infringement.
Monopolies are a bad thing for consumers, Government enforced Monopolies are worse.
P.S. I stole all these ideas from others, even the ones I believed were original are heavily derived from preexisting thought.
But especial theft thanks goes to Freedom of Expression be Kembrew McCloud http://kembrew.com/books/ which is very readable has well documented examples of all the above and is available for money or for free.

Lessig's latest book for free

[Octagon Most]

Prof. Lessig has put his money where his mouth is, so to speak. He is offering his latest book, Free culture, as a free download. You can get it as a 2.4MB PDF, a bittorrent, or a in a bunch of other formats. Enjoy.