Sunday, March 09, 2003

South by Southwest 2003 XI

Lawrence Lessig: Add Sanity

Lessig is a professor at Stanford Law School and founder of the school's center for Internet and society. He is also Creative Commons' chairman of the board of directors. Here is a rough transcript of Lessig's remarks:

Last month, in February, this man, Jack Valenti, appeared at the Duke Law School and gave a lecture. We could call it a sermon. In this lecture, Jack told students about morality. This is what he said

  • democratic nation
  • greatness
  • moral compact
  • moral imperative
  • duty
  • honor
  • integrity

    These values, Jack said, are corrupted. They are corrupted, he said, by the Enrons of society. Second, these values are being corrupted by "sharing." By "file-sharing." By the "terrorists." These are our children. These terrorists are sharing content on the Internet.

    This, he said, much change, for "Man is the only animal … who understands the difference between the way things are and the way things ought to be."

    1998 was going to be a great year. Work from 1923 was going to enter the public domain 75 years after it was created. 75 years is an odd number because in 1923, copyright was for 56 years. 85% of copyright holders didn’t extend their copyrights.

    Every time Congress extends public domain, it is in effect tolling the public. Of all the work produced in 1923, no more than 2% was commercially exploited. The rest of the works stay invisibly in that space because it wasn't commercially produced.

    In 1930, 10,027 books were published. In 1998, 174 were still in print. That left 9,853 books out of print and invisible. The copyright system continued its control.

    Between 1923 and 1946, 97.7% of books are no longer commercially availble. 93.2% of films are no longer commercially available. The commercial publishers basically give us 10% of what was produced.

    1998 would change that. In 1998, that work would pass into the public domain and the situation would heal itself. Others could take it and build it by redistributing it or building on it with derivative works. [This would have affected] playwrights … archivists … researchers … music companies … and finally, a father.

    A man named Eric Eldred. A man who, for the last few years, was developing works for his daughters who were bored with English. He began this career of building works on the Internet in the public domain, spreading knowledge. Works that were not easily available. They were building from the work in the public domain the way our framers intended it when they wrote that part of the Constitution that has now been erased.

    This is nothing new. My favorite hero did this in 1928. My hero Walt created this heroic character Steamboat Willie. Steamboat Willie inspired Mickey Mouse. And from Mickey Mouse, we got the Disney empire.

    Buster Keaton's Steamboat Bill, Jr., was explicitly ripped off by Walt when he created Steamboat Willie. This is creativity. It's a creativity we should embrace and praise. Walt Disney creativity takes and builds on what went before. It's a brilliant form of cultural expression. It was the birth of the cut and paste culture, the rip, mix, and burn culture that the Apple Corp. sells us.

    More than parroting existing films, all of his works build on works that previously existed in the public domain. We should call this Walt Disney creativity We take and we express differently. This is the expression of what our culture is about. He had this freedom, and we don't.

    In the next 20 years, 1 million patents will enter the public domain. Not one copyright will enter the public domain. We have 20 more years to wait to release this content that was built under the expectation that copyrights would expire.

    They say something was stolen from them. They say that something was stolen from us. They say that in this bargain that was struck, this exchange of 75 years of protection, this promise has been broken because work that would have entered the public domain won't. Congress took this work and gave it to particular people who have green things that they give to campaigns.

    Where was Jack when this theft happened? Where was Valenti when these values were stolen? Where were his ideals when money broke the promise? Where was Jack? Jack was on the hill arguing for the copyright extension act.

    "It was our duty," he said, "to extend these copyrights." This is what he said

  • duty
  • service
  • honor
  • integrity
  • pity
  • pride
  • compassion
  • sacrifice

    That wasn't their bargain. Their duty. What we struck was an exchange for a protection for a limited time. That deal has been taken from these creators.

    Jack believes this is moral, this taking. Regardless of whether you believe this is moral for the 2%, I want you to consider the 98%. That 98% is locked up in copyright today with extraordinary cost to even identify the copyright holders for no productive reason at all just because this money bought an extension for 20 years for works that were supposed to be protected for a limited time.

    Copyright law has been transformed to be an extreme. Originally intended to benefit authors, it no longer functions like this. It protects not authors, but publishers. It enables a control over the creative process that produces a homogenization of this culture.

    This concentration is new. 80% of music is distributed by five companies. 80% of television comes from six firms. We have never had a history in our time when fewer interests created more of the creative process.

    Does it make sense for creators?

    Before the Internet, I don't think this change mattered much. What could you do except turn to commercial publishers? It didn't matter much to your production. After the Internet, this change matters lots. The kind of creativity enabled by the digital consumer is radically different. Millions now are in the position to be the creators and distributors of content. Before the Internet, this was simoly not possible.

    What blocks this creativity is this kind of regulation. This digital creativity is Walt Disney creativity.

    [At this point, Lessig showed a snippet of Bush and Blair's rendition of "Endless Love."]

    These guys are the beginning of what we'll be able to do. These guys are tiny. They don't have any money. In the world that we live in, in a world that's as defined by Disney and Coca-Cola as it is by George Bush, we have no freedom to take these expressions and ideas and build on them in the way that Walt could in 1928.

    What explains removing those freedoms from us now? We can do it technically, but we can't do it legally. Why? We could do it legally if only we could get the law out of the way. We tried to get Congress to do something sensible, and that failed. I, the last naïve law professor in the country, went before the conservative Supreme Court. That ideal was given to us 210 years ago, and it was taken away from us today for no good reason at all.

    It's time to try to do something new. Something new inspired by GNU. This is the space of the Creative Commons. There are three kinds of people out there. Some who believe that all of their rights need to be protected. Some who believe that none of their rights need to be protected. They just gave them away. And some who believe that some of their rights need to be protected -- but some can be given it away.

    Most of the time, we look at the extremes. What I want is something in the middle. We need something here to get some sort of balance that leads the extremes back to the extremes. We need to stop solving for the extreme case and start building an architecture that recognizes the middle. That's the function of the Creative Commons.

    The Creative Commons is a nonprofit organization that will have thousands of ideas for how people can reasonably build on existing ideas.

    I believe in something different than the extremes that Jack Valenti sings for. Here, some people talk about incentives. Here's one of my favorite guys who talks about incentives: Cory Doctorow. He sold many, many books in bookstores for a first novelist. But he had 70,000 people download his book from the Net.

    The people who assume the law would be reasonable are people who don't know about the law. The layers that CC licenses enable are layers of expression. Tomorrow we're going to announce new versions of the license. One is a sampling license. One says explicitly that we don't want to oppose restrictions on people in developing nations. They don't even have money to buy things.

    We've also talked about building more artists into this system. Davis Guggenheim has joined the board because he has a vision of how to best take film content that allows other to use content to build documentaries in the way that documentaries should be made.

    Valenti is the third reason you should participate in this project. Whether you have a personal incentive, whether you want to enable innovation or not, in this world of extremists, we need a way to say "I believe in free." We need to express it so we can look out into this space and say that the world is not divided into those who believe in total control and those who believe in no control.

    We can change the way this debate happens in Washington. We need to express the space in which creators operate. We need to enable other to build and mark a space in the middle. I feel an extraordinary frustration in my own world. The ideals that the legal tradition talks about in terms of balance have been exploited.

    We can change that failure because we can succeed here. We can succeed in just the way Jack said. We are the animals that know the difference between the way things are and the way things ought to be.

    Artists do not control. Artists are not free. Culture is not free. This is where we are. We could be back in a world where culture is free. Not free where artists don't get paid but free in the way that speech is free. The only thing that stands in the way is the people I make for a living.

    Let me tell you about us. We believe in control. We create structures of control. It makes us feel good. This ideology of control now permeates the law. This control is our security.

    This control is not the environment of creativity. You know that. This extreme of control is not the environment in which creativity can flourish. You know that. You need to stand up and push us out of the room. You need to reclaim this space for you. We don't believe in this space. Our laws enable the most powerful in a way that will stifle and kill diverse, decentralized creativity.

    We have ideals, too. We believe in a democratic nation. We believe that greatness is earned through respect and criticism. We believe in a moral compact in which people are free to express criticism. We believe in a moral imperative and duty to build this freedom back into our culture. The honor of our nation has been the honor of free people who can speak about freedom without calling their lawyer -- who can speak about integrity and mean it.

    That freedom is at our fingertips. But that freedom has to be fought for. 210 years ago they gave it to us. We have lost it. Only if we build the revolution they gave us 210 years ago, can we reclaim it.
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