Lessig's "In Defense of Piracy"

chromakey writes "The Wall Street Journal is running an essay from Lawrence Lessig about the fair use of copyrighted material on the Internet. He makes the case that companies who go to extreme lengths to squash minor videos, such as Universal, are stifling creativity in the modern era. Lessig makes specific reference to a YouTube video that was hit by a DMCA takedown notice, in which a 13-month-old child is dancing to a nearly inaudible soundtrack of Prince's 'Let's Go Crazy.' Lawrence Lessig is a board member for the Electronic Frontier Foundation."

Comments

Re:Lessig still defends copyright

[Anonymous Coward]

The obvious point is that he is still championing change, while most of us just sit on our butts and complain. Regardless of our views on just how much more change should be ushered in, you have to respect his efforts.

As a sidenote, my captcha is 'copying'.

Re:Lessig still defends copyright

[Anonymous Coward]

Why, it's almost as if there's a spectrum of opinions on /. from disparate individuals that are merely communicating in a shared forum!

Why should everything bring a profit?

[mangu]

Why do media companies think that any use of media should be paid for?

Suppose farmers acted like that. They grow grain to sell, but their plants create oxygen from carbon dioxide gas as a side effect. Oxygen is a valuable commodity, it's sold in bottles for many uses: hospitals, aviators, steel-cutting, etc. But farmers are sensible enough to know that it would be totally impractical to try to charge for the oxygen their plants release into the atmosphere.

Media companies should grow up and accept the same fact for their productions. Copyrights should be enforced in movie theatres, someone sneaking into a theatre to watch a movie without paying is somewhat like someone stealing grain from a farmer. But trying to charge for every little use of their media is like a farmer trying to charge for the oxygen their plants release into the atmosphere the same price industrial gas distributors charge for bottled oxygen.

Re:Why should everything bring a profit?

[mi]

But farmers are sensible enough to know that it would be totally impractical to try to charge for the oxygen their plants release into the atmosphere.

Only until it becomes practical to do that. When it does, expect the market of all sorts of airs ("Wisconsin Pasture", "Vermont Forest") — and expect people trying to sneak into the crops-covering air-collecting canopy for a sniff to get busted (deservingly).

Re:Why should everything bring a profit?

[mangu]

With media companies, the media is their primary product. Apples and oranges

Hmmm, I see. So, you're saying that when a company creates a film for theatre exhibition, they cannot charge for the by-products? Such as foreign translations? TV versions? DVDs? Sound tracks? Mpeg files?

Re:Why should everything bring a profit?

[qw0ntum]

I don't believe "added value" is a myth.

When I buy food in a restaurant, the chef adds value to the ingredients by preparing them in a knowledgable way. I find more value in, and am willing to pay more for, a fine dinner than I am for a fish and some vegetables. The end product has more value than its constituent parts because of the valuable skills the chef used to create it.

Value is not inherent in anything. Human creativity and ingenuity versus our needs creates value. Iron is not valuable to a stone age society. It becomes highly valuable once they possess the skill to use it in a way that helps meet their needs.

Another example. The hard drive in your computer is more valuable to you than other hard drives or the $30 (approx) it cost to manufacture because it holds data that is presumably important to you on it. So, it is more valuable than its constituent components. And it's not any more valuable to me than another hard drive, because I don't have any interest in the data on it.

So, I humbly disagree that value can't be added to something already existing. I think that nothing has inherent value, and whatever value it does have (financially or otherwise) is placed upon it us. But that's just my philosophical point of view.

Re:Why should everything bring a profit?

[Mateo_LeFou]

"Why do media companies think that any use of media should be paid for?"

Because the metaphor of property was allowed to run rampant, unquestioned.

Not to flamebait or OT, but as in many things, rms was prophetic about this. He begged anyone who would listen not to use the term "intellectual property" as was widely ridiculed, as in many things.

Re:Why should everything bring a profit?

[MBGMorden]

I don't think he misunderstood you at all - he's just saying your wrong.

A pile of fish, vegetable, and spices in a grocery store have a general value. In their unprocessed form, they are worth little. If I go home and prepare them myself their value will increase a little because of the preparation. If a good chef does it, the value will increase much more. The finished product is worth more than the unprocessed form. To believe otherwise is to essentially reduce the value of human labor to zero - afterall if the materials had all the value at the start then after the labor has been expended in your view the value has not changed.

Try to get by in a world where you aren't willing to pay anything for human labor. Unless you're one hell of a subsistence farmer, it's just not going to work.

Re:Why should everything bring a profit?

[qw0ntum]

I think my point was that I see value as something not being inherent in the materials to begin with. To me the reshaping IS where value comes from. The ingredients are valuable in as much as they have the ability to meet needs or to be reshaped to meet needs.

There's nothing wrong with the point you're making; I was just pointing out an interesting difference, and I think I understand your argument perfectly well. Whereas you see value as being pre-existing (what I'm referring to as "inherent") I see value as something that is only created. I think it's possible to build an internally consistent belief structure around both of those starting positions. I just thought the differences in our beliefs was interesting enough to warrant some discussion.

Re:Why should everything bring a profit?

[ultranova]

Only until it becomes practical to do that. When it does, expect the market of all sorts of airs ("Wisconsin Pasture", "Vermont Forest") -- and expect people trying to sneak into the crops-covering air-collecting canopy for a sniff to get busted (deservingly).

Well, when that day comes, those farmers better make damn sure that none of the carbon dioxide those plants consume comes from my lungs.

Re:Why should everything bring a profit?

[noidentity]

Bad example, since you cited a physical resource. If I use it, someone else can't. Not so with information.

Re:Why should everything bring a profit?

[TheVelvetFlamebait]

Because the metaphor of property was allowed to run rampant, unquestioned.

Agreed, but there's actually a similar situation on the other side of copyrights, where copyrights are considered so far divorced from property, that breaking copyright isn't considered stealing, despite the good reasons to do so. (I will go into them if anyone wants to know)

Copyright is a means, not an end

[mangu]

The US Constitution says:

The Congress shall have power ... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries

Copyright is constitutional only if it promotes the progress of science and useful arts.

Now the question is *ARE* science and useful arts being promoted by copyrights? Would you say that this work is a progress over this one? If a remake was made, is the copyright in the older film still valid? Why?

The only thing that's being promoted by copyrights is the profit of some corporations.

Re:Copyright is a means, not an end

[Artifakt]

I agree with you that the preface clause doesn't limit Congress to only establishing copyright if the material counts as a useful art or science, nor does it limit terms to only those durations that result in a net gain to the art or science involved.
I disagree that SCOTUS is right (not that they will listen to me). I think that the founders, when they wrote about a limited time, were treating copyright as derived from a natural right to copy, which everyone posessed by Nature, for the agnostic founders (or grant of Nature's God, for the deistic founders). That natural right was of course naturally limited, by death. No one could exercise their right to copy even a fraction of a second after they died. If that's true, then 'for a limited time' would have to mean less than a natural lifespan. Life+50, 70 and so on type limits violate this, AND they make copyright a created right, not a transferred one. By its very definition, a Life+70 type right has to be created at least in part by the government, by fiat, and not exist as a transfer.
      The real downside of this is, if Congress ever shortens copyright, the remaining time now doesn't have to revert to the public. If Congress were to decide tomorrow that authors could only enjoy, say, a 14 year copyright, they could give the remainder to anybody, the public, the federal government, the organized publishing industry as a whole, or whatever, and it wouldn't be a taking without just compensation, anymore than the original extension was a taking from the public (again, as SCOTUS sees it). A lot of authors who think the government is on their side may get a rude shock.
      One last point - while, as far as I can see, it doesn't hurt your argument or mine, there's a real shift in what English meant then and means now. That is, useful arts mostly meant technologies and practical applications, not arts like painting or playwriting, and a lot of things we'd call arts, i.e. literature, rhetoric and philosophy, were more firmly regarded as part of the Sciences in Madison's and Jefferson's days.

Re:Lessig still defends copyright

[zappepcs]

In fact, I think you have something. If only the sound track in the example were posted to Youtube, would it have been infringement? Would anyone have listened to it? I posit that it would have been useless without the little dancing kid, and therefore is a 'new' work based loosely on impressions from Prince's work, and thus required some semblance of his work to create the second and 'new' work.

How much profit should go to prince? None. He got free advertising and possibly should pay a royalty to the second artist. After all, if it weren't for the video there would only be 4 people thinking of Prince's music... 3 if you don't count him, or something like that.

The "time limit of popularity" has passed. His music is not on the charts anymore so using it is not unfairly drawing off his work to garner profit or popularity. In fact, it can be argued that he garnered popularity because of this second work. Once that "time limit" passes, copyright is arguably invalid.

Re:Lessig still defends copyright

[MrMista_B]

Well, it's only odd until you realise that 'Slashdot' isn't a single person or entity with a single will and single set of values, but is in fact comprosed of many individuals, with many individual and different value and points of view. Thus, the idea that 'Slashdot' could thing that copyright should both be enshrined in law, and also utterly erradicated, isn't contradictory at all, because those views, and many more alike and different to those views, are held by different people.

End all copyright - it's based on flawed logic

[kaltkalt]

Copyright was never intended to prevent private copying for noncommercial uses. Please don't try to argue that "copying = not buying = commercial loss = commercial use" because it's a horribly disingenuous and intellectually dishonest argument. Stealing is depriving someone else of their property. Even if copying is depriving someone of a potential sale, there is no vested property right in potential sales. If so capitalism would not work, as competition would be equivalent to stealing. The makers of cars would be stealing from the makers of horsedrawn carriages. The makers of refrigerators would be stealing from ice manufacturers. The makers of calculators would be stealing from the makers of abacuses (abaci?). You get the point. I should be able to copy and read/watch/listen to/play in my own home, for my own use, any media in existence. The notion that without monopolies, creative people would not create has long been disproved. No monopolies are necessary to foster creativity. The best, most creative people will create regardless. The hacks are the ones who need monopoly protection. For example, without copyright, Neil Young would still be making music, but Brittney Spears would not. Because copyright has been so greatly abused, because it's been proven to be based on flawed logic, and because it only serves to hinder creativity and make money for those who do not deserve it, copright should be abolished completely. There should still be protection for attribution to prevent plaigariasm, in some form.

Re:End all copyright - it's based on flawed logic

[bonch]

If you end all copyright, you won't have the GPL anymore, since it relies on it. There is such a thing as intellectual property, and this is value assigned to mind creations, like music, artwork, and more.

You're essentially saying that, say, if I spent three years writing an epic novel, I have no right to be compensated for it because you can easily copy a text file of it. Sorry, but that's silly. Your rant really stems from a desire to pirate everything for free without having to pay for it.

The notion that without monopolies, creative people would not create has long been disproved. No monopolies are necessary to foster creativity. The best, most creative people will create regardless. [snip] Because copyright has been so greatly abused, because it's been proven to be based on flawed logic...

You cite no proof, and you throw out an assumptions about artists. There are essentially no facts whatsoever in your entire post--just fuzzy dorm room ideals and unproven claims.

For some reason, people like you purposely ignore the reality of making a living off your work. A painter sells his paintings so he can make money and continue painting, supplying himself with more canvas and oils, traveling to locations to paint as well as to display his artwortk in galleries, and so forth. It's basic common sense. You want to deprive him of that money so that it's harder for him to paint. He might even have to work a regular day job that interferes with his painting time. In fact, if he seeks money for his paintings, you might criticize him for not being a "true artist." It's all bullshit, frankly. How would John Carmack have made a living in your fantasy world?

There's just this odd double-standard where people like you imply that artists who try to make a living are greedy or selfish, when you're the one arguing for a lack of copyright so you can pirate their work without paying them for it. We'll see how my post gets moderated--anti-piracy views tend to get knocked down on this site, for whatever reasons...

Re:End all copyright - it's based on flawed logic

[Kjella]

The notion that without monopolies, creative people would not create has long been disproved. No monopolies are necessary to foster creativity. The best, most creative people will create regardless. The hacks are the ones who need monopoly protection. For example, without copyright, Neil Young would still be making music, but Brittney Spears would not.

That some guy will come up with some song and play a few lines on his guitar yes, but that's like proving an all out nuclear war isn't the end because the cockroaches would survive. Take a modern day TV production, and look at the credits. There's maybe five main actors, but a ton of people doing location, camera, sound, makeup, wardrobe, props, sound effects, music, editing, special effects and all the other bits of putting it all together. Neil Young's songs make him famous, so is Jerry Seinfeld but most of the staff are never seen, heard or have any creative input at all. They do it as a job to earn money and it all works because the show makes a lot of money which pays the production costs (and a nice profit to the man himself, but that's beside the point).

The point is that only those that get a direct and personal benefit would do still be creating without profit, everyone else in a support job to realize someone else's creation would not. Of course there'd still be those making money indirectly, for example the ballet could still hire a choreographer since they get money of live performances which would be passed down to him. But those that have relied on those monopolies to pay people would be gone, and if you try to claim that's not many people and that their products (mostly TV and movies) don't play an important part of modern culture then you're seriously deluding yourself.

Of course slashdot has already declared that all the good music, TV and movies have already been made and if we shut down everything and listened to 20th century hits forever that'd be just groovy. Hint: Thinking everything new sucks probably means you're becoming an old fart and liking alternative music probably means you have an alternative taste, not some wild conspiracy to keep people from realizing alternative music exists. Don't get me wrong - I know YouTube is rather popular but so is Prison Break and Lost, and without copyright I'm pretty sure the latter would die. Not because the stars wouldn't want to keep going, but because the guys you've never heard of wouldn't want to.

Well it's still going to take awhile

[baggins2001]

This concept of creative common good is going to take awhile to be accepted.
1) It has to be accepted by society.
Many still do not understand the Open Source model. If you look at financial markets and talk to business people they don't understand how RedHat and Novell plan to make money selling free software.
2) Those who appreciate open source, need to reward those who produce for the open market.
Not many have gotten filthy rich from open source.
3) Lessig is correct.
Copyright and IP rights are probably going to be here for awhile and probably should stay. Those who publish and produced copyright and license information software are going to be here for awhile. They choose to participate in a different market. Until there is a detriment or significant benefit to participation in one type of market or another, there is always going to be a choice.
4) Get over it
As long as MS, Universal, .... whoever sees a benefit they are going to do what they have been doing.
Personally, I believe this is going to bite them in the ass big time. They want an open global market and yet they want IP rights at the same time. Well guess what, you manufacture your product in Asia and you've pretty much open sourced your product. They don't like to talk about it very much, but it is a fact of what is happening.
[ubiquitous car analogy] If you make a car and you want it made cheaply, you had better have figured out a way to make a steady income from that car. What is happening is companies are requesting certain manufacturing be done, and then all of a sudden somebody else is manufacturing the same product. They start screaming "They stole our product". Guess what get over it, by the time you finish the legal international law wrangling, there is nothing left.
So as soon as a company accepts open source the quicker they will be able to adjust to the global market.

Re:Lessig still defends copyright

[Anonymous Coward]

Even though Lessig wants to change the length of copyright and ensure fair use, he still believes that the concept should be enshrined in law. That makes his status as a hero here on Slashdot odd, because many posters here have claimed that copyright is simply no longer a valid concept at all in the digital era.

Nope. I hear people saying "But Sladhdotters dislike copyright" but few slashdotters who say that they actually do.

Quite the opposite.

I would think that I am with the majority when saying "There should be no software patents, just copyright to your code and programs."

However, I do dislike the misuse of copyright. Atleast by the finnish laws, the original creator has a copyright to his work but anyone adding or modifying it enough to make it a different creation all together gains rights to that.

But it just gets so difficult to define with soundtracks. I would personally say that if the music and everything else are creatively made together (particularly fitting scenes cut, etc.) it becomes a new creation of itself but if someone just adds a complete song to a random video that doesn't really fit it isn't.

So in my view, Universal should have had the right to say "Hey, you can't just take our song to a boring video of a dancing baby and call it a whole new creation. But they also shouldn't have been assholes and use that right. Laws in your country may differ from my utopia.

Sell unlimited use by context to individuals

[Bones3D_mac]

You know, if these companies thought on a smaller scale, they could just work out a deal with individuals where if a copyrighted work is unintentionally embedded into that individual's content, that individual could pay a reasonably small fee to continue using it without harassment, so long as it remains used only that particular context.

People like to be able to share their home movies, but with crap like this going on, anyone is potentially vulnerable to similar issues with recording industry, simply because some jackass drove by their house with the radio cranked to 11 as the video was being shot.

Oh, and forget anything like weddings or birthdays being safe from such abuses, birthdays are guaranteed to be grab bags for whoever owns the rights to "the birthday song" (which really should be in the public domain by now, IMHO). I'll bet there may even be a crack team doing nothing but searching youtube for birthday clips for any infringing content including "the birthday song" to harass those who posted it unaware they did anything wrong...

Re:Sell unlimited use by context to individuals

[fermion]

Such licensing would solve many problems, but the idea that the cost would be minimal is not supported by evidence. In fact we can look at commercial licensing and see that the cost is often prohibitive. In addition to the number of television shows that cannot be released on DVD, two other specific examples come to mind. First the german movie Lola Rennt, according to the audio commentary, was going to use an Elvis tune. The cost was extraordinary, so another song was used. Second, In Buffy Whedon used unsigned bands. His justification was that these were the bands that would play in the fictional "Bronze", but it also saved a huge amount in licensing fees and probably allowed the DVDs to be released at a much lower cost.

It is clear that the copyright holders would rather kill the market than reform licensing. We see this with the initial waste of effort with DRM, and the instance that a clip, no matter how short, cannot be used without paying a fee, even if the use generates no direct profit. In the scenario described by the parent post, for example, the fee for the song would be at least a couple hundred dollars.

The best thing we can do is fight the fiscal liberals who wish to use taxpayer money to protect their private property by unreasonably extending copyrights. Really, anything that is 50 years old should be public domain, without exception. If profit has not been made, too bad. For instance, it is going to be pretty stupid for 2020 to roll around and Michael Jackson or whoever to still be making money off the Beatles. Such a policy simply destroys innovation and creativity.

Wrong Thomas

[symbolset]

It was actually Thomas McCauley in 1841.

And yes, he considered these issues and came to the same conclusions as Mr. Lessig over 150 years ago.

Maybe we should just do away with copyright. That would solve this problem permanently without consuming the precious resources of the courts.

Re:Lessig still defends copyright

[Jafafa Hots]

The way I think about it is like this - copyright was essentially invented to stop someone from killing your market for your stuff. (temporarily)

If you record a song and someone else manufactures copies of your song and sells them, they are killing your market.

If someone samples your song and uses a 3-second blip of sound to create their own work and sells it, there's no way in hell they are killing your market.

NOBODY has ever decided not to buy a pop CD because they already have a recording of their aunt singing the song in a karaoke bar.

Re:messed up industry

[eniacfoa]

sorry, but a 3 dvd set isnt making top gear available to the crazy demand...3 dvd's of a few shows isnt making the entire series available to people. this is my point, there is the demand, but no supply because the cretins in charge of content are too slow to move, so slow that people just dont care that they are pirating anymore because either they are left with no choice in a lot of cases...

Re:Copyright is a commodity

[mangu]

the simplest approach is that all rights should be legally bound (non-transferable) to the creator

An interesting idea, but unenforceable. They would just turn the contract around. Instead of the artist selling the rights to the song, he would contract the services of the MAFIAA to distribute it. Instead of getting 0.05% of the sales in royalties, he would pay 99.95% of the sales in fees.

Re:My piracy experiment on Slashdot

[bonch]

The GPL is a form of copyright licensing that attempts to enforce certain usage restrictions/requirements. I don't understand why you think the GPL would be unnecessary if we didn't have copyright. The purpose of the GPL is to ensure that changes made to something are returned to everybody, and without copyright, there would be no reason to follow the license and distribute any changes made. The GPL doesn't exist as a reaction to copyright; it requires copyright to have any power.

What can the government do about energy prices?

[tepples]

Perhaps when our lazy government gets off of its backside and does something about the exploitation of our citizens by outrageous fuel and power prices [...] then i'll worry about [copyright misuse]

The United States government can't just force firms in other countries to sell energy more cheaply. There are two ways to push the price of a good down: increase supply or decrease demand. A government can regulate demand for a particular form of energy down somewhat by subsidizing more energy-efficient products, and it can regulate supply up by subsidizing forms of energy that haven't yet been widely exploited, but these won't have as dramatic an effect on energy prices as some might hope.

Re:My piracy experiment on Slashdot

[Bill Currie]

The GPL wouldn't be necessary because those that took the code and closed it off wouldn't have any legal standing against those that continued to distribute the free versions or those that re-freed the closed off portions (by reverse engineering etc).

Like any strategy game, you have to think several moves ahead.

Fair Use != Piracy

[1_brown_mouse]

It continues the myth every time someone makes the same lazy connection.

BSD is useless by that metric.

[nyet]

You can take my BSD licensed source code, make a binary from it, sell me the binary, then sue me for copyright infringement if I distribute your binary without your permission.

Re:My piracy experiment on Slashdot

[TheoMurpse]

You make two points I disagree with. The first is by far the most important to address:

But your new product would be functionally very similar to the original and a close competititor.

Woah. Since when was open source/FLOSS ever about competition? I thought it was about keeping good code open for people to improve upon!

And if your new software were available for free, yours would likely wipe the other out.

I think the existence of myriad competing products makes that argument demonstrably false. I mean, if all products are "open," then shouldn't we just see the competition of Ubuntu and Debian as proof that even if two products are both freely distributable, one does not wipe the other out? I mean, Ubuntu is "functionally very similar to the original and a close competitor."