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Lessig Defends Free Culture in Keynote
lisah writes "Professor Larry Lessig, a keynote speaker at this week's Linux World Expo, took issue with current copyright laws and their effect on a free read-write culture. Lessig says that, by today's standards, the simple act of creating a video mashup renders its creator a 'pirate' and argued for sweeping changes that would embrace a fair use culture. Lessig asked the audience to consider sharing works under a Creative Commons license and redirect money they would spend on restricted content to organizations that support a fair use and free culture. He says that opponents of a free read-write culture have strong financial and political backing so unified community support is crucial. 'If the debate is controlled by lawyers and lobbyists...," says Lessig, 'this debate will be lost.'"
It's interesting to see how this affects different media. Creating and posting a mash-up of the Harry Potter films would be grounds for a lawsuit, and yet there's nothing to stop millions of thirteen-year-olds writing terrible fanfic and posting it all over the internet. Oh, the horror!
How much money would this culture cost the entertainment producers? If fair use is really fair then it should still allow
I do not think that media should be allowed to be replayed for free. Significant amounts of money went into making TV shows and movies and the like and any system must ensure that the producer gets his cut. Contrary to the demands of my sig, not all information should be completely free. Using the CC license is a happy medium. The I really think that this speaker has the right approach, so to speak. From TFA:
Information wants a fueled airplane waiting at the hangar and no one gets hurt.
Most people are going to look at Dr. Lessig and fail to grasp why this is important at all. Until we all realize that we're being ripped off, and that this kind of freedom IS important, we're going to be stuck with the media giants telling us where, when, and how we can use "their content."
Redirecting spending money from copyrighted content to independent artists releasing their work under the Creative Commons license is akin to becoming vegan/veggetarian: It requires willpower, it requires sometimes going for what is best when it's not what you want, and overall it's worth it. It's also doomed to failure in an instant gratification culture.
It has my support, though, for what that's worth. I wish the idea the best of luck, and I gladly participate.
I had the pleasure of seeing Lessig speak a year ago. If you ever have the chance to see this man, do so. Even if you hate his message, he is an absolute god when it comes to speaking and presenting. His style of presentation has earned its own title of the "Lessig" style of presentation.
While I am somewhat awed by Lessig's ability to present, my real admiration for him comes from how he has pursued his cause. Lessig argues for radical change in current laws. He is not the only person to argue for radical change. What makes Lessig different is that had has not only made attempts to work within law to bring about change, but he has gone even further and tried to implement what he advocates within a voluntary and completely legal manner without reliance on the force of government to enact the change that he seeks. Lots of people advocate some sort of radical change in society, but relatively few make a genuine attempt to bring about such change through methods other then complaining to the government to use the force of law.
The Creative Commons is an incredible accomplishment. While the CC is in no danger of displacing current media, it has certainly started to make a dent. Will the CC ever make a dent large enough for the average Joe to really sit up and take notice without legislative change? Perhaps not, but what it has done is create an ecosystem to explore the 'fair use' world that Lessig envisions. Even those who find the watering down of copyright power revolting can not honestly proclaim any sort of mal-intent from creating a way for artists who want to offer their works to the public domain a simple and easily identifiable way to do so.
I strongly encourage anyone who is even vaugly interested in this debate to check out Lessig's book, Free Culture. Keeping in tune with Lessig's philosophy on copyright, the book is freely available online. Some enterprising readers of the book also have a complete reading of the book in MP3 format. Check it out.
If I want to do a movie on Vampires, should I have to pay someone? You mess Lessig's point. Culture by definition builds upon its past. Vampires, elves, bad ass action heroes, our concept of aliens, formulaic romantic comedies, guitars, a generic punk sound, a whiny emo sound, and all other pieces of "entertainment" are all "mashups" in one way or another. All of the above exist ONLY because of culture that they were built upon. None of the above have any meaning to a stone aged tribal person living in the rainforest. These are not concepts that spring magically from the human mind. These are concepts that have evolved in our culture. Lessig's point is that we are stunting culture by following back every creative idea to its source and asking permission before we use it.
If you had to go back and ask the originators punk if you could use their sound and they had an absolute veto over it, we might very well not have punk and all the other types of music that sprung from that branch in the musical tree. The same goes for more other examples. Today, you can merrily write about vampires without worry of a lawsuit, but if you try and write about another fictional villain, say a Star Wars Sith Lord, and you will find your ass sued into the ground. This SHOULD be troubling. Our ability to create new culture is being stunted by demanding that anyone wants to bud off of some other creative needs to ask the original authors permission. Instead of having an explosion of stories and mythos from worlds from our popular culture, we have tightly controlled and stunted versions.
Further, even the most pro-copyright minded person MUST see the insanity of copyrights that last CENTURIES. Lessig doesn't argue for an end to copyright. He argues for some sort of sanity in it. Giving people copyrights that exists well past their death and then some is crazy. Dead artists don't need their works protected. If you want to use a Robert Frost poem, you damn well should be able to. The guy has been dead for almost half of a centaury yet you can still find your ass sued if you post one of his poems on the Internet.
No matter what you think of copyright, you MUST agree that the current system is insane and needs fixing. Perhaps you might not want to take it as far as Lessig does, but you certainly must agree that a mean who died in 1949 doesn't need his work to continue to waste away under copyright protection.
Nice to see someone clearly and unapologetically proffer their opinion. Many people feel the same way as you. Personally I think you're on crack, but I'm in the minority. Just so we're clear, do you believe Spider Robinson or Robert Ludlum or Tom Clancy should have the right to veto any film based on one of their books too?
How we know is more important than what we know.
Authors have the right to be compensated under CC licenses by choosing CC-NC-SA. All a CC license does in that case is makes it clear to the readers of the book that they can enjoy the fair use privileges we used to take for granted. There's a distinction between consumers and resellers there that modern copyright fanatics forget: the law was not meant to keep me from giving my copy of Harry Potter to my friend, it was meant to keep me from printing a thousand copies without permission. Copyright's trying to remove all those rights, and CC is an attempt to clarify them again.
But the bigger issue is whether Jack Ryan is actually the exclusive property of Tom Clancy as a concept. Fanfic isn't strictly legal if you're a copyright maximalist. Exploring the characters and ideas that other authors have created should be encouraged. "Patriot Games" may not be the best book in the world, but it could be that someone out there will write the Best Novel of All Time based on a character Mr Clancy created. But no one will try that if they think they're going to get sued. CC content creates an environment where derivative works can be made without fear of retribution, and quite possibly lead to more revenue streams for the originating artist.
CC does not have to mean "nobody gets paid". It's more about "nobody has to be scared of lawyers".
The world's only surviving livewriter.
I suppose that the validity of that statement is rather dependent upon the jurisdiction under which you have chosen to live. As for the dire consequences of this particular example, I shall be hard pressed to lose much sleep; first of all, the statement only applies in those circumstances in which the creator of the video clip does not desire to allow you to use their product in such a manner; if one find such a practice objectionable, one is free (nay, encouraged) to go forth and produce more free content which one may then release under more permissive conditions. Surely society would be well served by an increase in the amount of original content facilitated by such a course of action. Furthermore, the primary valid reason which would prompt one to desire to create a "video mashup" would appear to be satire, which I believe is still protected under most jurisdictions irrespective of the wishes of the person whose work is being satirized; as such, I fail to notice the problem. In the unseemly circumstance that the owner of the work does not desire to allow their work to be satirized, and the jurisdiction under which one finds themselves actually cares about such matters, one is presented with two options: relocation, or the creation of satire without inclusion of the original subject matter in one's own work. Neither of these two options seem all that horrendous.
Both of those appear to be reasonable courses of actions; I am impressed with the apparent understanding of both the philosophy of individual liberty and the workings of the free market exhibited by this individual.
I am unfamiliar with the finer nuances of the English language. When one refers to an entire group ("opponents"), without using an adjective such as "some," does one imply that the rest of the sentence applies to every person belonging to that group? Can one be a proponent of "free read-write culture" without having strong financial and political (whatever that means) backing? If I were to become a supporter of "free read-write culture," would I instantaneously receive "strong financial and political backing?" Is the intention to imply that one cannot be a proponent of the ideology espoused by this individual by one's own convictions, but rather, only by having some sort of sinister motive or receiving a large cash payoff?
How can a debate be controlled by "lawyers and lobbyists," and even if such a thing was possible, how would this lead to the loss of the debate? If you have truth and reason on your side, you shall surely win the debate if both parties are allowed to express themselves. That being said, one may surely lose the battle of having one's ideas implemented by law, but seeing as the two ideas mentioned by the individual above were matters of individual choice and working within the free market, I fail to see what "lawyers and lobbyists" have to do with anything. After all, neither lobbyists nor lawyers shall prevent free citizens from "sharing works under a Creative Commons license and redirect money they would spend on restricted content to organizations that support a fair use and free culture" as long as the citizens in questions can be referred to as free.
Uttering logically derived and empirically supported truths to the disciples of the orthodox establishment.
There is no such thing as a "right to make money". All you have is a right to try. You know, freedom?
I write fairly innovative software (clustereding stuff) for a start up. If they become successful enough, they might sell out to Oracle or - god forbid -, Microsoft. If they do, some people will make a bundle. I'll make nothing.
Some may argue that I poorly negotiated my contract, that I should have stock options, whatever. And they's be right, too.
The point is that I do that because I like it. If people are more creative than I am at making money, good for them. Of course I'll be jealous for a while, I'm human.
If I had chosen another job, or went painting, similar stuff would have been created anyway. If there was no copyright, I'd be buried in NDAs, but I'd be doing it anyway. So it's not like the people would be loosing anything. Somebody else is probably doing paintings similar to what might have "created".
The whole idea of copyright is based on 3 ideas:
- creativity is scarce;
- creating requires time people don't have;
- distribution is expensive.
The first never was true. People will create. That's human nature.
The second... you're working what? 50 hours a week? That leaves you how much to do whatever you want to do?
The third is obsolete thanks to the 'net.
If there's any lesson the world at large should draw from the whole open source thing, it's that people *will* create *without compensation* because they just damn *feel* *like* *it* (re: Murphy's law for lab animals).
So it's time to ditch copyrights as we know them.
You have to remember, however, that Lessig is able to be "generous" because he is "subsidized." In other words, as a professor, he draws a hefty salary (typically over $100,000 annually) with low health insurance rates , and anything else is gravy. In addition, he has retirement pension and benefits.
However, if you are a screenwriter or an author or independent artist, you don't necessarily have the luxury of giving away your creative works for free, because that IS your livelihood, and you are probably working on it 24 hours a day, whether conciously or subconsiously (i.e. thinking about it even while you are sleeping). An artist may have a lot of success now, but the artist's next work may be a failure and lose money. Buying independent health insurance can cost about $175 per month alone. Plus an independent artist will not necessarily have retirement fund with matching employer contributions as Lessig has.
Lessig is passionate about free stuff because it benefits HIM, not artists. He stands everything to GAIN, and nothing to lose, plus he's getting paid for it. Giving away his book for free is just part of the charade.
FTFH: Lessig Defends Free Culture in Keynote
If he's going to be defending "Free Culture," then shouldn't he really be doing it in Impress and not Keynote???
If you don't know where you are going, you will wind up somewhere else.
This is the real question.
For example: Do you think that the original Battlestar Galactica TV show constituted theft of the ideas in Star Wars? Did Lucas steal the plot of Kurusawa's Hidden Fortress?
The problem with your interpretation is that plot ideas, characters, and so on do not spring from a whole cloth out of the author's mind, unaided by the culture and society in which the author lives. James Joyce couldn't have written Ulysses were it not for Homer's Odyssey. How could schools of artistic expression spring up unless one artist was taking and expanding upon the ideas of others? Placing inordinate barriers on creativity ultimately thwarts economic growth as well as the vitality of a culture.
I don't have a problem with copyright. I do have a problem with the persistent belief that creative works are the same as tables or bicycles or computers. They are not. The Constitution created copyright as a spur to creativity, *not* as a means of equating the intellectual property inherent in a creative work with the real property in a plot of land. Copyright is an artificial, legal construct.
Copyright exists "To Promote the Progress of Science and the Useful Arts" not to serve as a perpetual income machine for writers and artists.
Read the EFF's Fair Use FAQ
I like mash-ups
Making *good* use of sound...any sound, is an art. And doing it well is arguably more difficult...if a note doesn't fit, you can't change it. It just doesn't fit.
You need to get over the notion that "art" is always _new_. In reality, art is new every few hundred years if ever. Art is the reinterpretation of previous art pasted over the canvas of the current society.
Chuck Berry "invented" rock 'n roll (just a r&b variant at the time!) and the Beach Boys just took Chuck Berry and re-interpretted it as viewed by the surf culture. etc, etc, etc...
If you think imaginary property and real property are the same, when does your house become public domain?
A man stomped into a bar, having made his way from the local courthouse. "LAWYERS ARE ASS HOLES!" he roared to no one in particular. Then someone in the back yelled, "Hey, I really resent that!"
"Oh, are you a lawyer?", said the newcomer, preparing to tell his story.
"No, I'm an asshole" was the reply.
Are you suggesting community-driven open-source collaborative pr0n development? The idea is appealing, but sourceforge might find it appalling. The "release early, release often" rule would apply just perfect though...
"The whole idea of copyright is based on 3 ideas:
- creativity is scarce;
- creating requires time people don't have;
- distribution is expensive."
You need to add one just after the second:
- creativity has expenses;
The cost of raw goods to create whatever it is you are making shouldn't be ignored.
B.
This is a sig. This is only a sig. Had this been an actual sig you would have been informed where to tune for more sigs.
I'd be more sympathetic with copyright holders if they weren't such hypocrites. Much of modern copyright issues can be traced to the Disney corporation. Extensions on copyright are directly linked to the expiration of copyright on Mickey Mouse.
Disney has made billions upon billions of dollars using the "intellectual property" of long dead authors. Do you really think Cinderella, Sleeping Beauty, Pinocchio, or any of other stories that built the Disney empire were dreamed up by Disney themselves? That didn't stop them from using the material. Where was their concern for the "protection" of ideas back then?
Walt Disney is every bit as dead as Hans Christian Anderson, yet if I tried to sell a story about Mickey Mouse I'd have about one week before I found myself assaulted by Disney's legal department. Why is one protected and not the other?
How do you avoid Muzak and other brands of corporate music played as background noise in grocery stores, on some public transportation, in medical clinic waiting rooms, at the office etc?
Am I given a choice, or do the other 99.999999% of the voting population choose for me?
Not so fast. There exist companies that own exclusive rights in millions of works of authorship. If you accidentally copy part of one of those works into one of your own works, you are a copyright infringer. Such copying is inevitable.
Parody is protected; satire isn't.
With the increasing crackdown on illegal immigration without expansion of legal immigration, how is international relocation feasible?
Given only the contents of a work, how can I determine whether it has been accidentally copied from an existing copyrighted work?
Free market? Copyright opposes the free market, as it is a government grant of monopoly.
If I cannot confirm the lack of copyright in the string of notes that make up the melody of my song, I cannot lawfully publish it under a Free Art License or any Creative Commons license.
Lessig is starting to sound like Stallman. Stallman is more effective, though. What we need is some serious lobbying, along the following lines:
-
Copyright harmonization The US should not go beyond the 50 years of the TRIPS agreement. 50 years from first publication, copyright expires. That's it. Free Elvis! (The US can do that unilaterally. Less than 50 years requires international negotiation.)
-
Make copy protection illegal for uncopyrightable material If you can't copyright it, you can't use technical means to protect it.
-
Enforce the Audio Home Recording Act Any arrangement between manufacturers and/or content distributors to restrict rights guaranteed to consumers is illegal restraint of trade.
-
Free spectrum, free content If it goes out over the free airwaves, like TV channels for which broadcasters do not pay, it can't be copy protected.
Now that's a reasonable agenda to lobby for.Exploring the characters and ideas that other authors have created should be encouraged.
To a point. The problem is that there is a big difference between exploring existing characters and cashing in on popular characters, but it's not an easily defined difference. It is generally good for the culture to have the freedom to use characters in contexts not blessed by the creator. On the other hand, it is incredibly easy to use the popularity of a character to sell mediocre merchandise (like the unauthorized Calvin windshield stickers). If an author has done the work of constructing a character and associating it with certain ideologies in the popular mind, why should he not be compensated when a third party capitalizes on that work? More importantly where and how do you draw the line legally?
Legally, I'd say the line is drawn as such: You may creative derivative works using elements from this creation, but commercial exploitation of those works must be approved by the original author. Unless they specifically waive that right.
The blurring of copyright at the moment means that people avoid writing derivatives because there's no distinction between commercial and non-commercial works. If there's a chance I'll be sued for writing something, I really have to weigh how much I want to do it. Copyright shouldn't be a weapon to stop people from exploring new ideas based around other artists' works... it should be used as a tool to prevent the unauthorized commercialization of works. Narrowing the focus back to what it was meant to be would cut back on litigation and immediately make the world a more creative place.
The world's only surviving livewriter.
But wouldn't you rather watch pr0^wcontent made by people you know?
... that's what XTube is for.
Duh
"Ladies and gentlemen, my killbot features Lotus Notes and a machine gun. It is the finest available."
Rant on.
Mashups are not fair use for the artist unless the artist releases the work for use as a mashup. If you create a mashup you *are* infringing a copyright -- AND more importantly, a moral and ethical right. The creator of a work has the right to ensure that that work is only seen in a form which the creator approves of. If the artist releases it for use in a mashup, fine. If not, it is not yours to play with. Just because it is easy to steal material and make a mashup does not mean it should be legal. It's easy to spit on people in the street and scratch your keys down someone's door; doesn't mean it should be legal.
And don't tell me there's 'no harm' in it. If I am an artist and you misrepresent my work, you are harming my reputation. You might scare off potential customers, whatever. Even if you label the work as derivative, people seeing will still use it, consciously or not, to help form an opinion on the underlying art.
You could argue that the extra exposure might benefit an artist. BUT it is THEIR choice if they chase that extra exposure or not, not a mashup artist's choice.
A lot of internet discussion revolves around the user's rights, the big fat corporations trying to protect their wallets, all that emotional crap. THe actualt creators, off which 99% of the web feeds like a parasite, get squashed between the two.
Rant off.
Mr Card is absolutely wrong. You do not have to defend your copyright, only your trademarks. If any of these characters is trademarked, then he has to act in every case where he becomes aware of infringment. See the recent posts about Google trying to stop people using their name as a verb.
:(
Trademarks must be defended. Patents and copyrights don't.
Interesting to see that OSC would sue over something he obviously doesn't understand. Hopefully his lawyers would stop him.
It's also interesting to see an artist crave that life + 70 year bullshit. He seems more interested in leaving his family money than in contributing to the shared culture of the world. Sad... I expected more of him
He also used a really funky "one slide per emphasized word" method of presentation that David Weinberger took great pleasure in parodying in his own talk two days later. :-)
You have a sad view of the world, that you think artists have some sort of ultimate right over how people view their work. Artists can expect a certain moral right that people will not plagiarize their works, but an idea is an idea. If I tell you an idea, I don't have any right to control what you then do with that idea. If I don't want you to misinterpret my idea, my sole recourse is to not tell you in the first place. (Particularly, if you're selling a work in exchange for money, you've just sold something. You should no longer expect to have complete control. If you want complete control, don't sell it.)
Derivative works happen all the time, especially for works in the public domain. Disney makes cartoons based on classic fairy tales (Snow White, Cinderella, etc). Should they need permission from the Grimms Brothers estate, because they may not be preserving their artisitic vision? "Clueless" is basically an updated "Emma". Do you think Jane Austen is rolling over in her grave? Some works are not out of copyright, and have attracted lawsuits, like "The Wind Done Gone" vs. "Gone With The Wind". Should Leonardo DaVinci's descendants have the right to complain about the Mona Lisa's frame? Should MAD Magazine be banned, since a parody (a form of derivative work) may convince me that some subpar movie just isn't worth watching?
Luckily, copyright in the US is not intended to protect any sort of "creative right". We can only hope it never will.
Copyright law in this country is stacked firmly in favor of the copyright owners.
When our founding fathers developed the idea of licensing intellectual property it was originally for 7 years of exclusivity, after which it was public domain.
Then we began to allow people to renew their copyright for a few more years. And then hollywood began to manipulate the law makers with lobbyists and more and more time began being added until it was a lifetime copyright, and then up to 70 years after the persons death.
And then they started allowing corporations to own copyrights, and since a corporation doesn't die, neither does their copyright. They also began the process of "auto renewing" copyrights whether the original author wanted to or not.
This caused a huge problem when works like documentaries on the civil rights movement, where the original copyright owner could not be located, that efectively locked the work out of the public eye.
There are thousands of orphaned works like that and since their copyrights are kept locked up indefinately after being abandoned, nobody can use them.
So we go from 7 years to lifetime +80 years. Basicly every time Mickey Mouse gets close to being public domain, Disney lobbyists get the deadline extended. The last of these was the Sonny Bono act that extended copyrights out even farther.
Look, nothing is created in a vacume. If you write a book, or a movie, or paint something, you didn't come up with all of that yourself. You had influences from other artists, from the public. There is nothing new out there, everything is based upon the work of somebody else. And if we lock everything up and use copyright as an excuse to NEVER release it back to the public then it ends up crippling the next generation of artists and innovators.
Imagine what music would be like if everything by Mozart and Bach, and other classical artists was still copyright. A lot of people don't realize it but the Happy birthday song is copyright and every time it's used in a movie they have to license it.
It was not the intention of the founding fathers of this country for works of art to remain privatized for hundreds of years. They felt that 7 years was enough, and that after that it should become public domain. This cycle of creativity is what creates new art and new artists, and if people are stingy with their art and don't give back, after taking so much, then no new art is created.
I utterly reject the concept of unlimited copyrights and the rampant lawsuits for sampling other peoples music, mashing up videos, making mosaics of photographs, or any of the other things that limit an artists creative freedoms.
I would love to see all that come to pass, but come on... how on earth could such a lobbying agenda ever get funded at the requisite levels? Remember "Rock the Vote," where an entire generation was going to wake like a sleeping giant & give Washington what for? Even with exposure to the saturation point, voter turnout was anemic at best for Rock the Vote's target demographic.
Turning your laudable agenda into reality takes more than tip-jar money - it takes soul-owning money. The other side has quite an inventory of legislators already. For crying out loud, look at the excrable piece of legislation that got Feinstein (D) & Frist (R) cooperating!
I would be *thrilled* to be wrong on this, but I don't think the war can realisticly be won at the grassroots, political action level. Various viral marketing tactics for alternative media is one helpful strategy, and frankly, rogue technology is the other. If those who would control every exposure to media products are swiftly defeated by technological liberators every time the two face off, then all the laws in the US Code won't help the restrictors put the toothpaste back in the tube.
Using free software, people can already share data anonymously, store data invisibly, and view and copy just about any extant media without difficulty. Cobble all that into a single dashboard / portal interface & make it portable, extensible, and a no-brainer for the unsavvy to use, and you have quite a strong weapon against DRM: its own futility. Of course IANAL and I don't recommend anyone do anything illegal; just keep in mind that technology can secure certain liberties when governments fail to.
Pi Ran Out
The problem with Lessig is that his position is not anti-copyright, but reform copyright enough to find a "happy" middle ground. While this sounds nice, the RIAA and MPAA understand very cleary that this is an all or nothing battle and have been using him to confuse and appease the masses from the front-door while they ram down harsher than ever copyright restriction laws and lawsiuts thru the back door. Is he refusing to take a total stand against copyrights because he has some deep moral understanding about the nature of free information that we dont? No. He is doing it because he does not want to be considered "radical" even if that radical position is the truth. We shouldn't follow him, because he is following us by pandering to the masses instead of the facts. While this might help him get good book sells, it will not help liberty in the information age which is really the goal.
Of course, that may be a misunderstanding he used to have.
The world's only surviving livewriter.
The fruit seller down the street from me is not guaranteed that anyone will buy his oranges before they go bad. That doesn't make stealing them ok.
The producers, writers and actors of TV shows expect that if they do a good job, their show will go into syndication and sell on DVD. You can't just deprive them of that income because those sales aren't guaranteed. The fact that people are willing to pay for the DVDs and watch those reruns and that advertisers are willing to pay for those reruns to be aired proves that TV shows have a value beyond their first airing.
Also, who are you to decide where movies should be paid for? The fact that there are people willing to pay to buy and rent movies proves that there is a value to DVDs. Your deciding otherwise doesn't change anything.
Mmmm.. Donuts
Unfortunately, I believe that retooling an existing system in such disrepair as the copyright system with patchwork alternative licensing schemes is just creating complexity which wouldn't adjusted existing law, which is the root of the problem.
The original intent of copyright law was to foment the creativity by creating a system where a person's intellectual work was protected for a period of time. During this period of time, the initial work's integrity was guaranteed and gave control over its dissemination to its creator. By integrity, I mean it could not be altered from its original form without permission and attribution, and by control, I mean it couldn't be disseminated without permission. Of course, it was up to the creator to decide whether either of these would be pursued in the case of infringement.
Note that the original intent was not to give the creator of intellectual property perpetual license to profit from his work. This would have given the creator no reason to continue creating since he/she would be able to profit in perpetuity, so the amount of time was intentionally finite, judged to be the amount of time to become (if it was of significant import) ubiquitous to the culture, on the order of 20 years or so. It should also be noted that copyright law does not explicitly give the creator the right to profit from the work, although this is implied in his/her rights of control.
The principle of fair use has always been a part of copyright law principles because an important right to freedom of expression is public debate and political satire. Essentially fair use states that nominal, attributed citation of portions of another's intellectual property for the creation of another intellectual work is not only protected speech, but vital to the political and cultural health of the nation.
However, because of the implicit ability to profit over intellectual works, it was only a matter of time before distribution organizations would pop up, and it was only a matter of a little more time before the laws were amended to maximize the profits of copyright holders, both through the ability to extend copyrights beyond their bounds, lengthening of the interval of copyright protection, and wholesale relinquishment of rights through draconian licensing agreements.
Right now, I believe that if you publically perform a rendition of Happy Birthday, you owe someone a royalty (and if you do so without the holder's prior permission, you are infringing, and thus liable for damages). Given the cultural ubiquity of Happy Birthday, one can reasonably argue that copyright law no longer protects intellectual property in a manner consistent with its inception.
At this point, especially with regard to entertainment media, we have a licensing system that no longer embraces the spirit of copyright law. It has gotten so far out of hand, what with the civil prosecution of juveniles, and the otherwise shotgun-blast method of doling out lawsuits to scare people into settlements, that the law must be changed. Specifically, it must be changed to embrace its heritage, not protect those interested in using it as an instrument of extorting exorbitant sums from people they have the nerve to call their customers.
You pay for it all right, not in money but in the right to compose songs. U.S. copyright case law considers "access" plus "substantial similarity" to equal copying. If you hear a recording of an all-rights-reserved song on Muzak, you are for the rest of your life deemed to have had "access" to the work. Years later, if you ever compose something that is accidentally similar, you are an infringer and a plagiarist.
Ideas and concepts aren't protected by copyright.
Analogies don't equal equalities, they are merely somewhat analogous.
Should it? For one thing, you're not talking about copyrights. You're talking about trademarks -- which are another form of "intellectual property," but they aren't Lessig's main issue.
The problem with the Sith Lord is that Lucas owns a trademark on the term "Sith Lord." But there are plenty of amateur fictional works about, for example, a guy who travels in time with a few companions in a time machine that's bigger on the outside than on the inside and who undoes the plans of evil robots -- they just can't call those stories "Doctor Who." That's nothing to do with copyrights. That's trademarks.
Even so, it's not as if wanting to protect one's intellectual property is a new idea. Many people consider the first "modern" novel to be Don Quixote by Miguel de Cervantes Saavedra, which was published in two parts. The first part appeared in 1605 and the second in 1615. Before Cervantes could publish the second part, however, a man writing under the name of Alonso Fernándo de Avellaneda published an unauthorized sequel to the original, in an attempt to capitalize on Cervantes' huge success. Cervantes was pissed. There was no trademark law at the time that could protect him; he fought back by devoting several sections of the authentic sequel to lampooning and chiding the impostor. Some characters in the real sequel even claim to have read the fake one. What's more, academic society frowns on Avellaneda's work, which has come to be known as the "false Quixote" and is often dismissed outright. In other words, society at large perceives the validity of Cervantes' "ownership" of the character of Quixote, even if there is no explicit law on the books that makes what Avellaneda did a crime. So you can't act like this debate is a manifestation of the modern era; in fact it goes back centuries.
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First of all, fanfic is completely legal under copyright law. If you've created an original work that doesn't borrow large sections from any other work, then you own the copyright on that work outright. You can't copyright character names or even the titles of books. You can, however, trademark them ... and this is where most fanfic runs into trouble, but this is a completely separate issue.
Besides, I really doubt any fanfic will ever rise to the category of Greatest Novel of All Time, mainly because most people recognize a pastiche for what it is.
This debate has been going on throughout history. Many people consider the first "modern" novel to be Don Quixote de la Mancha by Miguel de Cervantes Saavedra, which was published in two parts. The first part appeared in 1605 and the second in 1615. Before Cervantes could publish the second part, however, a man writing under the name of Alonso Fernándo de Avellaneda published an unauthorized sequel to the original, in an attempt to capitalize on Cervantes' huge success. Cervantes was pissed.
There was no trademark law at the time that could protect him. Instead, he fought back by devoting several sections of the authentic sequel to lampooning and chiding the impostor. Some characters in the real sequel even claim to have read the fake one.
More to the point, academic society frowns on Avellaneda's work, which has come to be known as the "false Quixote" and is often dismissed outright. In other words, society at large perceives the validity of Cervantes' "ownership" of the character of Quixote, even if there is no explicit law on the books that makes what Avellaneda did a crime, and they view the Avellaneda book as a pointless pastiche -- even though a few people who have actually taken the time to read it claim that it's actually decent fun.
So you can't act like this debate is a manifestation of the modern era; in fact it goes back centuries. And you also can't act like mainstream society agrees with your view on fanfic, and only evil modern media corporations take the opposite view, because the historical record clearly proves you wrong.
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Fanfic may be completely legal under copyright law, but the concept of fair use is, too. All it takes is a C&D to frighten people away, which large corporations use willy-nilly. It's not as if most CC licenses communicate more rights to the end-user than normal copyright does, its main function is to say: "We're not going to come after you with a stick for enjoying this work". A fear of legal action is enough to keep people from exploring things, whether the law backs up the threat or not.
As for whether fanfic can rise to the level of great literature... I'd say there's as good a chance as not, really. Honestly, I don't see the difference between a Star Wars novel and something written about the fall of Troy (on a conceptual level at least). If you write off a whole class of art as being frivolous simply because it's derivative, you might be missing something great. And if you try and restrict that realm from existing, you're certainly losing something... whether it's a real work of art or just a dry run for something else. ('Fanfic' is a bad term, too, because it carries a negative connotation... but it's shorthand for what it means, I guess, so we're stuck with it... but don't just the book by its cover)
The debate isn't a manifestation of the modern era, but, like you said, the modern era's given the originating artist (or, more likely, the corporation that owns the copyright) a huge arsenal of weapons to put unreasonable dampeners on creativity. Personally, I'd love for all works to go public domain after 7-14 years, and then let the rest of the world build upon the stuff that's out there. Homer didn't just make that stuff up off the top of his head... and there might be fantastic things we can't imagine right now because nobody's given the right to explore them.
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As they are required to do, by the terms of trademark law. If you fail to "vigorously defend" trademarks, you could lose the protection. Again, you're not talking about copyrights with fanfic. You're talking about trademarks.
I've given you an example of some great fanfic of the ages (the False Quixote). Please cite a counter-example of real world fanfic that succeeds in rising even to the level of a licensed Star Wars novel. And even then, to me, no Star Wars novel will ever be considered great literature, licensed or not. If you don't understand why, then I submit that you are woefully behind on your reading. My recommendation is to branch out of the Star Wars aisle.
No it doesn't. It gives you copyright law, which is the very essence of the Gnu General Public License, as well as the Creative Commons licenses. As for the rest of the "arsenal," that's something else again, and contrary to what you keep saying, it's not about copyrights. Mickey Mouse cartoons could go out of copyright tomorrow and you would be able to make and sell as many copies of those cartoons as you wantedBreakfast served all day!
Can't think of anything off the top of my head. But that's not to say there isn't anything, just that I am not well-read enough to know about it. I would also say that your prejudice against popular culture may blind you to great works right under your nose (again, no evidence, just a feeling). If Charles Dickens time travelled to 2006 and wrote an epic novel about the trials of Harry Potter, would it be garbage?
I actually don't read books like that at all, I'm just saying that the Star Wars mythology is the kind that lends itself to great literature... just because George Lucas hasn't hit on some pure undeniable genius from his own creation doesn't mean it's not there. If it took Shakespeare and his contemporaries a few iterations of each play to make something we consider great, maybe the same is going to be said for Darth Vader one day. Maybe not. But (blurring trademarks and copyright together into a single blob here), the state of today's IP laws make it impossible to find out.
And here's where I cheat a bit and ask for your insights: if Mickey Mouse's copyright were to expire right now, then it'd be legal for me to sell copies of his "free" cartoons without fear of a lawsuit. If Mickey is then a public domain entity, would trademarks actually apply to him anymore? That is to say, can you exert trademark control over public domain art? Or would that simply be a question of "the static silhouetted head of Mickey Mouse is trademarked", but the character himself moving about the screen is now?
Or, to bring it back to Star Wars (shoulda picked some other pop culture property), if that series were public domain today, would the trademarks have much value? It seems to me that deflating modern copyright would almost, by extension, deflate the related trademarks. But CC doesn't fix that, I guess.
Ah, so related question: if I release a book CC-SA, I can't very well trademark any of the elements of that book, can I? Am I making any sense?
The world's only surviving livewriter.
Certainly true; but that's not the fault of the issuer. Remember: Anyone can sue you for anything. Moreover, a lawyer can write a letter on any topic he/she wants.
I expect so. Because he'd be writing prose designed to target/consume an intellectual property, rather than doing what writers ought to do, which is concentrate on telling good stories with compelling characters. By insisting on limiting himself to the use of someone else's character, he's already chucked out half his faculties.
Murky. You'd be advised to tread carefully. For starters, Mickey Mouse doesn't have a copyright. Individual Mickey Mouse cartoons have copyrights. Each one has an entirely separate copyright.
As to whether trademarks can protect things that are "public domain" or in common usage, consider this: Many trademarks are just combinations of English words. "Etch-a-sketch." How can that be a trademark? Those are three English words and I can etch a sketch for you right now, if you'd like.
The key is that trademarks are marks that are employed in the practice of trade. The marks are used to define and differentiate practitioners in their trade -- exclusive use is granted so that I can let people know that I'm me, and you can let people know that you're you, but you can't all of a sudden start using my mark on your goods to confuse people and make them think you're me.
When you register a trademark, you also have to tell the trademark office what you're registering it for. Just because you register the trademark "Lucky 7" and you sell Lucky 7 brand motor oil, that doesn't mean I can't sell Lucky 7 brand pillow cases if our other marks are sufficiently differentiated from one another. You would have to also register a tradmark in the area of pillow cases (or textiles or whatever the appropriate category might be) to stop me from doing that.
I think it's reasonably safe to say that Disney has registered the likeness of the Mickey Mouse character for just about every category imaginable, however.
So you've got a public domain Mickey Mouse cartoon. How can you sell it? Well, you can probably put a still from the cartoon on the front cover -- since the whole cartoon is public domain then it stands to reason that so is any individual still from the cartoon. You might not be able to use the phrase "Mickey Mouse" on the cover (it's probably trademarked), but you could use the title of the cartoon, most certainly. You probably couldn't use the Disney logo. But you could use your own logo, and your company could be called "Classic Toonz Unlimited," further explaining what the contents are. Obviously I'm pulling all this out of my ass, but these are the types of issues that might come up.
Sound like a hassle? Sure. So, answer your own question -- even though the work you want to sell has gone out of copyright, do the trademarks still have value? Sounds like they do, to me.
Also, even if an individual Mickey Mouse cartoon went public domain -- even if they all did -- that wouldn't give you the license to make brand-new Mickey Mouse cartoons. A copyright covers a particular expression of a particular work. It doesn't cover the idea of Mickey Mouse himself. Copyrights don't protect ideas, they protect expression. That one cartoon, either it's copyrighted or it's not. Even if
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Stories aren't ideas nor concepts.
Analogies don't equal equalities, they are merely somewhat analogous.