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Peter Wayner Interviews Lawrence Lessig
from the names-are-familiar dept.
Peter Wayner: You offer a number of proposals for keeping the layers of the Internet and the software world independent. The U.S. tried to pursue these same goals in the early part of the 1900s in the hope of limiting trusts and conglomerates, but much of that spirit has faded. Can you draw many lessons from the past?
Lawrence Lessig: Innovation always and only happens when the new is protected from the power of the old. The internet could take off only because the telecoms were not allowed to kill the competition; cable TV could thrive independent of the networks because copyright law was narrowed to mean that broadcasters couldn't leverage their power in broadcasting into control of cable.
PW: So it's not about monopolies or cartels as much as as the past and the future.
LL: Yes, these examples are not so much about "trustbusting" legislation. They are all about limitations on the power of the past to control the future.
PW: But surely the people who worked so hard in the past must be given something, if only to encourage new developers who want to have something when today and tomorrow becomes the past?
LL: I'm all for making sure that the "people" who "worked so hard in the past" be given "something." That's different from giving the companies of "the past" the power to stifle new innovation. We didn't give the horse-and-buggy industry the power to stop cars; or the railroads the power to crush commercial trucking. Why should we give (through government granted monopolies called "copyright") the labels the power to stop a new way to produce and distribute content? Or cable television the power to tilt the internet against new forms of video competition?
PW: Sometimes the future even helps the old alliances, if only because they're best prepared to take advantage of the competitive opportunities. The local phone companies complained about the Internet, but they've made a fortune on second lines. The coming of cable and satellite television has really helped everyone except the old broadcast networks and even they've benefitted. NBC has several cable channels. ABC is tightly aligned with ESPN. Is it possible that loosening copyright's grip might actually help the music industry?
LL: Would my proposals be "good for the industry itself?" Who's the industry? If you mean the existing labels? Then no, my proposals won't benefit them. If you mean artists and consumers, yes, the changes I describe would enable much greater innovation than is allowed just now, and that would benefit creators and consumers. I am not someone who believes that the future produces no losers. I just believe that the losers should not control the future.
PW: You open the book with a great example of the legal shackles that bind the film makers in Hollywood. I love the story of the chair designer who sued because his chair was in a film without his permission. Does it really make sense for an industry to push so many legal rights for artistic creations?
LL: It makes sense for those who can benefit, relative to others, from cumbersome legal regulation. Who is that? Old industries, protecting themselves from the new. A world where you need a lawyer to sneeze is a world where only the large and entrenched have the freedom to breathe.
PW: But sometimes the small fry can succeed. The freelance writers dealt the New York Times a big blow. I keep imagine that some coalition of artists will find a way to grab large, six figure damage awards from a label that underreported royalties. Do the large companies need to be wary of being branded pirates?
LL: There is a strong movement growing to resist the labels. In February, there will be a benefit for artists opposed to the RIAA, and there are many others who are increasingly frustrated with the existing system. But I'm not yet convinced the resistance will be enough.
PW: Could a car maker copyright their car and use the anti-piracy laws to destroy the competitive marketplace in replacement parts? Could they stop remanufacturing parts to save money? Do they have the power now to treat wrenches and screwdrivers as pirate tools? Does the DMCA apply to a car if you consider the fact that cars come with dozens of CPUs and millions of lines of code embedded in ROM?
LL: If the lawyers at Sony could convince Sony management that they should threaten legal action against an owner of the Sony dog, Aibo, then I imagine it is just a matter of time before car manufacturers start thinking "creatively" about ways to inhibit creativity in their field too. I would expect such claims to fail, however. Car companies have lots of lobbyists; lobbyists protect their clients against bad and destructive legislation well. Now if only WE could get some lobbyists...
PW: The computer industry used to work hard to expand the demand for their products. Intel used to claim that wooing new customers for the Intel PC platform made more sense than battling AMD. Where are their lobbyists now? The PC is about to be turned into a cable television box as the content industry pushes to destroy the power of the desktop boxes.
LL: For some reason, the computer industry has been cowed into believing that the future will only be allowed if computers perfectly enforce the control of content by copyright holders. Perfect control might protect the "architecture of revenue" (as John Seely Brown describes it) of these dinosaurs, but it will not produce the fastest growth for this industry.
PW: The car industry used to strive to destroy the replacement part market so they could make bigger profits off of their users. Now Ford, Honda and others are actively sharing information with the parts industry in the hopes of encouraging people to add some zip to their cars. They realize that the coolest customers demand an aftermarket for parts with enhanced performance and the only way they can satisfy these people is to support the marketplace. Does the car industry know something that the music industry doesn't?
LL: I think it is less about learning something than it is about facing real competition. Businesses are great innovators when the market truly disciplines them. The music industry (unlike the artists) has not yet had to face the market.
PW: The fashion industry is one of the last manufacturers left to afford New York City's astronomical rents. Yet they have no copyright protection for their creative work. Do you think that the lack of legal armor leaves them better prepared to compete in the world?
LL: Yes. What we have got to learn again is that ours is a system that favors competition, not monopoly. The free market is all about inducing competition, not about granting protections from competition. Sometimes, small exceptions to this principle are needed. But they must be kept small if they are to remain exceptions.
PW: I like to think of this as the Napster recession. If you plot the stock markets before September 11th, you can see that the crucial court rulings are almost like hinge points where the market bends up or down. The stock prices go up after a favorable ruling for Napster and drop afterwards. It's probably a bit silly to ascribe all of the market's zeitgeist to one company, but the end of Napster is really the biggest roadblock for the personal computer. Until Napster crashed, everyone kept predicting more, bigger and better things for the humming space heaters under the desks.
LL: This is an important and under discussed point. We have seen a dramatic crash in the market. Why? Most attribute it exclusively to "irrational expectations." But meanwhile there has been a very dramatic change in the legal environment within which the take-off occurred. This change must have had an effect.
PW: We've also lost the rational exuberance. Now, we've got to ask mother-may-I before developing any neat software? Why bother? Can we blame Hollywood for this?
LL: While it would be irresponsible to try to say with any precision how much is a function of the content industry lawyers, it is also irresponsible not to at least acknowledge that some part of this decline is due to the different way the law regulates the net. Laws protecting dinosaurs from the content industry are killing the opportunity for growth. Why? Only because the only thing worse than well paid lobbyists is well paid lobbyists with movie stars.
PW: Several people have suggested that it is silly for the computer industry, which generates hundreds of billions of dollars a year in revenue, to cower before the world of Hollywood which generates only a few billion dollars. Can you think of ways for Intel, Dell, Gateway and perhaps IBM to get together and buy out the recording industry? Maybe Intel could distribute grants or gifts to recording artists that let their music flow freely over Napster? Or perhaps they could sponsor their concert tours? Or maybe just buy a few record labels and put them out of business?
LL: Wait. There's "Hollywood" or "the labels" on the one hand, and then there are "artists" on the other. They are not the same. I think there is a rich and vibrant future for artists; it would be richer and more vibrant if it were not exclusively controlled by the labels. The problem today is that "the labels" have been held to have in effect the legal right to veto the future they don't want. This is the consequence of concentrations of almost perpetual copyrights. If they couldn't veto the future, then there would be many competing to attract artists and consumers, with the result that both would be better off relative to where they are today.
PW: My understanding is that the record labels at AOL Time Warner make little money. Maybe AOL should just roll all of that music into the extra content provided by the monthly subscription price?
LL: AOL could help define a great future, if it built off of the instincts from its past. Make it easy for consumers to get access to communities and content: here's the important feature that Napster and AOL shared.
PW: Many of the effects of laws are strange, disconnected and lingering. The Dutch, for instance, are big publishers of books in English, a language that isn't really their official tongue. Even today, some of the biggest publishing firms are in Holland, not London or New York. Some date this juggernaut to the days of the English star chambers where secret courts told printers what they could and couldn't print. In light of historical examples like this, do you think the content czars in Hollywood are behaving rationally and trying to maximize their shareholder's profits?
LL: Yes, they are. But "their shareholder's profits" is not the same as the profits of a nation as a whole. Protectionism always harms the nation to benefit a favored few.
PW: But I would argue that the protectionism even hurt the British publishers too. I think it's kind of odd for a small country with a different official language to have such a large presence in English language publishing. But they do. And the German presence is substantial too. Shouldn't the British publishers wonder whether all of the protectionism robbed them of the ability to fend off the folks from the continent?
LL: The problem is protectionists will always think that any problem is caused by imperfections in protectionism, not by the imperfections of protectionism. We need to give up the idea that they will ever understand what good policy is, and focus instead on what good policy is.
PW: A few of the hottest directors in Hollywood are coming from countries with no tradition of respecting copyright. Should we view the success of directors like John Woo and Ang Lee as proof that pirate dens like Taiwan and China are comfortable spawning grounds for artists?
LL: That's too big a jump for me. I don't believe the choice is between zero protection for copyright and perfect protection for copyright. That's the choice Valenti and Rosen would have us make. I think there is an important role for a strong but limited copyright law to play; I therefore don't think people should get away with massive and broadscale piracy of other peoples' work. But I also don't think it is piracy whenever I use someone's work in a way that person hasn't authorized. Perfect protection kills innovation, just as the perfect absence of protection kills innovation.
PW: Much has been made about the decline of CD sales since the destruction of Napster. I think the problem is deeper. While they sell plenty of CD's, much of the growth comes from higher prices. There are other indications that the industry is losing the ability to engage the fans. The concert business is in a real slump. Most of the bands playing arenas and summer pavilions are leftovers from the 1980's. There just aren't that many bands that manage to get people to stand in line for tickets. Why can't the industry produce stars anymore? Is there no economic incentive? Or does the increasing concentration of power destroy the artistic marketplace's ability to discover talent/value?
LL: There is a deep cynicism about managed culture, and this is our modern popular culture. A kind of sovietism that worked. Passion for artists is reserved for those artists who have made it outside the managed track. There are many such artists, who promise a greater threat to the managed label system than the internet itself.
PW: Ah, sovietism. That's an excellent word. There really is that committee-made feeling about the packaged quality of modern music. The music industry likes to borrow many words and metaphors from the free market people. They talk about efficiencies of scale, synergy and distribution mechanisms, but in the end there's just a small committee deciding what we hear. It 's not really a marketplace anymore.
LL: It is control by a relatively few, in a world which could allow much greater freedom to the many. What possible justification could there be for protecting the power of this few, when the technology could allow so much more for the many?
Many thanks to Peter Wayner for conducting this interview.
Scary (Score:1)
Perception of position (Score:4, Insightful)
The studios/establishment wants absolute protection for ever. Lessig is saying, not forever, but for long enough to make a good return, but not too far to prevent commentary, satire, critism, and other fair use during the limited period.
General comments... (Score:1)
These are fairly obvious points. Companies that are not prepared to take advantage of new competitive outlets will obviously try to stifle them.
On the other hand, they're very good points. Current copyright law is so bloated, ambiguous, and restrictive, that I think we are in real danger of stifling future creative and technical endeavours. Take Lindows OS. Merging Windows software selection with Linux would be a beautiful thing. But one bullshit copyright suit later, the whole thing starts looking very unlikely.
Oh well, we certainly wouldn't want consumers to get confused. :)
The bit about concerts (Score:3, Interesting)
One comment bugged me.... (Score:4, Insightful)
Ok, I'll bite. I disagree to a point on his thoughts here. Napster was a nifty piece of software that did revolutionize the way people looked at computers. However, there is a lot more to the (I assume he is speaking of pc companies' stocks) decline in sales than Napster. How bout this recession we are in because any idiot with a half-baked idea could get millions in venture capital and then blew it when the dotbomb mess happened? People lost a LOT of jobs then. When your money is tight, your entertainment expenses tend to drop lower as well. Rather than go buy a new computer, people are making do with what they have. Not to mention the fact that this is a finite market as well. Once everyone has a computer, you can't expect sales and marketing to help much, people won't buy a new pc without a good reason. Napster may have been that reason for some, but I don't buy it. My $0.4
Re:One comment bugged me.... (Score:4, Insightful)
Obviously you're right that some of the dotcom crash was quite necessary and had nothing to do with the Napster ruling. But the point you're forgetting is that the dotcoms started to crash in the spring of 2000, and for a while it was pretty well contained: the dotcoms themselves (mostly just the bad ones) with some collateral damage to Sun and Cisco once they actually started going under in late 2000.
But the huge drop in consumer PC sales and consumer broadband didn't happen until spring 2001--until the Napster decision, almost precisely.
And it makes sense: you take a service that went from 0 people in fall 1999 to IIRC 80 million in spring 2001, many of them buying new computers, new CD burners, and/or broadband connections to use Napster, and then you suddenly take that impetus away, you're going to get a big problem on your hands. Indeed everybody had been saying for years that new computers weren't needed because there was no new killer app...but there *was* a killer app, Napster. Napster is the reason that every computer comes with a CD burner now, and DVD-ROMs are just optional. When I bought my last computer 3.5 years ago, I bought it with a DVD-ROM, because everyone thought they were going to replace CD-ROMs very quickly. But they didn't, and the reasons why were, in 1999, the introduction of the sub-$1000 computer, which kept CD-ROMs standard, and in 2000, Napster, which made CD burners standard.
So, again, the broadband and PC markets dropped in the wake of the Napster decision, like a rock. And of course the most ironic thing is that the music industry's sales did exactly the same thing--they were rising, at a record pace no less, throughout 2000 and Q101...but then, directly after the Napster decision, they turned negative and have plummetted ever since.
Of course everyone attributes this to the lack of good music (except the labels, who somehow attribute it to "piracy" even though it happened just as they killed off most music-sharing). But that just begs the question whether the existence of a free open venue for sharing music didn't help more people learn about more bands, and help more bands get more buzz and make it big. It's surely a better explanation than "all creative people with musical talent died or retired or got writer's block in mid-2001."
The saddest part is that the so-called free-market system does nothing to correct this tremendous self-induced mistake on the part of the record labels. Sure they're getting punished for it, but the end result of that is just that some will sell themselves to others and instead of the big 5, all our music will be controlled by the big 3 or the big 2. An even more concentrated monopoly will only mean increased lobbying power, an even more desperate insistence on rewriting the law to protect their obsolete business model, and even less chance of innovation or competition.
The point is not that the free market cannot coexist with government regulations; I agree with Lessig that some form of copyright is necessary, although I would revert to the pre-1990 style which essentially exempted non-commercial copying from infringement charges. The point is that the free market does not work when the current business leaders are able to buy laws to protect them from future conditions. Perhaps the whole Enron mess will lead some people to question that...but somehow I doubt it.
Lemme hear an "Amen!" (Score:2)
I still want to know if there's any chance lawmakers are listening when these talks come out, or if wonderful voices like this are drowned out by the cash of the RIAA and MPAA lobbyists. And what can we do? Writing letters goes only so far (lately they've been going to the "check for anthrax heap".) The current Administration has shown an amazing abilility to empathize with the big oil and energy industries. Should we expect any less regal treatment of the next MPAA petitioner?
History Of Copyright (Score:2)
Modern copyright laws originate from the French Revolution, where publishers were granted the exclusivity rights we all know about. Publishers, not artists.
How would your boss respond if your business' web page was copyright Rackspace? You'd probably self-host quick (not that I'm saying many don't already, but it shows the difference).
Copyright law is a holdback to when it was highly difficult to publish; in the internet age, it needs to be reconsidered. After all, does everyone's weblog need life+70 years of protection when the data often isn't interesting or relevant for more than about 10 years?
Not really an interview (Score:4, Informative)
Reduction in copyright term (Score:2, Interesting)
I'm hoping that we get a reversal of the Mickey Mouse extension and reduction in the number of years of copyright to say 10. We are losing too much old software. Books aren't becoming public domain (the original intent) for another 17 (or is it 50) years. I'd even be in favour of software copyright only being 5 years. That would put more presure on patents but that's a different battle.
Lobbyists (Score:3, Insightful)
I'd be more than willing to pay a tax that goes straight into some sort of government program that pays for lobbyists to represent my interests against those of big business. Legislators would have to listen, big business may control the campaign funds, but the final say is with the people. Does such an organization or a similar one exist already? If not I may have to start writing letters to my Congresspersons.
It's all in the US Constitution (Score:4, Insightful)
[emphasis added, of course]
Clearly the existence of intellectual property was not intended by the framers. The above (to me) pretty strongly implies that their feeling was that granting such exclusive rights to ideas was an evil necessary to encourage the generation of new ideas. If you asked them, they would say to make the "limited time" as short as possible. Intellectual property isn't one of those inalienable rights an inventor is entitled to, but rather a license granted by Congress as a reward for their innovation. Nowhere in the Constitution does it say that there is an inherent right to ownership of ideas. To rephrase Proudhon: Intellectual property is theft.
The problem about copyrights is... (Score:3, Interesting)
For crying out loud. You can't go telling someone that they have some type of inherent right and then turn arround and expect them to never to try and secure that right. If you allow any copyrights at all, then people are always going to try and drive it to it's logical conclusion that we are seeing today. The treatment of copyrights not as an incentive but a property.
This has happened before in American history too. Renember how slavery started out as indentured servitude. It was short term, not inherited, deeded people private property, and for blacks and whites. However, a few hundred or so years later, there were still large numbers of smart people who thought that throwing out slavery all together was too radical. That the slave states could get along with the free states. That the problem wasn't the idea of slavery, but how slaves were treated. Many people who hoped that inventions like the cottin gyn would provide the justification to elminiate slavery were heart broken to find that was rather used to leverage it's expansion over 100 times more.
Today the same is true with copyrights. A copyright that grants any imposition on free copying is just that, an imposition that now days is just not acceptable anymore. However, even more so - like in the history of slaves, a limited copyright is a foolish proposition, because it is not for us to decide. We can only react to how hard they'll push it, and every evidence is that they are willing to push it all the way.
Petition against Digital Millenium Copyright Act (Score:2)
Found this Petition link [petitiononline.com] on GNU site home page [gnu.org]
IP laws need to be changed from "Cannot" Based, to "Can" based.
We have the technology to make it work.
the sweet spot (Score:4, Interesting)
Perfect protection kills innovation, just as the perfect absence of protection kills innovation.
This reminds me of a section of Murray Gell Man's excellent book The Quark and the Jaguar [amazon.com]. Gell Man is discussing complexity, and describes how for a wide variety of "complex adaptive systems" (including evolution) there is an optimal amount of complexity -- enough randomness to serve as raw material, but not so much randomness that any meaningful patterns are destroyed before they form. A kind of "sweet spot" in the continuum of complexity from minimal complexity (a string of bits, all 0s) to maximal complexity (a totally random string). Gell Man defines all this quite formally, and I'm not doing him justice. Go read the book.
I don't think it would be much of a stretch to apply some of Gell Man's ideas about complex adaptive systems to a community of artists working within an environment (i.e., their society/culture, including legal restrictions).
I wish I had the book here with me, as I'm being very tentative because I don't want to misquote or misconstrue him.
Anyway, just a resonance.
grib.
I love this question! (Score:1)
Time warp? (Score:1)
OK, maybe it's just me, but I didn't think that the Internet and software existed in the early part of the 1900s.
How Can I Filter Larry? (Score:1, Flamebait)
It seems like everyday there is an article about this guy: Joe Blow interviews Lessig, Lessig writes an op-ed piece, Lessig gives a speach, Lessig takes a dump...
I'm not interested in joining the Fashionably Left. Could you please give him his own category so I can filter him?
Sovietism that worked... priceless (Score:5, Interesting)
LL has a true gift for langauge. Younger readers may not be aware just how tightly managed the Soviet Union was. The production of everything was strictly controlled by a series of Five Year Plans [encyclopedia.com] that attempted to match supply to predicted future demand. By "everything", I mean that the number and colour of toothbrushes that would be produced was planned on a five year basis.
Picture this from the populace's point of view. You go to buy a new toothbrush. You quite fancy an orange one, but all they have is blue. Everyone else is buying blue toothbrushes, so, hey why not? One toothbrush is much like another, right? They're all just cheap mass manufactured plastic that'll be old in six months, so you might as well buy what they've got. You quickly get used to it. In time, you stop even wondering what an orange toothbrush - or a non-Government toothbrush - would be like.
Compare with the US music industry. You go to buy a CD... you see where this is going?
Big labels plan years in advance. They produce acts to fit the niches that they have decided there will be demand for. If there isn't demand for those acts, well tough, that's all there is on the shelves, and they aren't going to change their CD pressing schedules to suit you. That would play merry hell with their smooth profits. They know they're getting your money, because all the artists are just cheap mass manufactured plastic that'll be old in six months, so you might as well buy what they've got. You quickly get used to it. In time, you stop even wondering what an independent artist would be like.
If you don't believe that labels plan that far ahead, look at Mariah Carey. She has a five album 80 million US dollar deal. Despite suffering an "emotional and physical breakdown" and releasing a film and album that both tanked, EMI has not canned her [yahoo.com]. They can't. They have a Five Year Plan. We will love Mariah, and we will buy her albums, because they will make damn sure that when the next album comes out, they'll have cut a deal to ensure that no big name from any other label will release at the same time, and the advertising will be Mariah, Mariah, Mariah.
Or so they think. The trouble with their Five Year Plans is the same as in the Soviet Union. The people aren't stupid. They know what kind of toothbrush they want. If they can't get that, then they'll take what's available. But when the non-Government toothbrushes become available on street corners, even though it's illegal, they'll buy them, and they'll tell their friends where to get them, and a black or grey market will spring up to supply the genuine demand, and the Five Year Plan is suddenly in disarray because all the cheap plastic government approved toothbrushes are sitting in factories and nobody wants them any more.
At this point, the analogy breaks down because it's comparing sharing with purchasing. The toothbrush analogy is very immediate, but if you want a better history lesson of why monolithic government/industry content control is doomed from the get go even if abominations like the SSSCA are passed, then read about samizdat [ualberta.ca], and understand that We, the People will find a way.
AOL can't release their music for free (Score:3, Informative)
Maybe AOL should just roll all of that music into the extra content provided by the monthly subscription price?
Unfortunately it's not this easy. AOL/TW only owns the mechanical rights to their works. However, there is another component to copyright called publishing rights. In order to deliver content in a legal manner over the internet, one needs to obtain both mechanical and publishing licenses.
Who owns the publishing rights? Publishing is a huge hornets nest. There are literally thousands of small groups that own the publishing rights, most of which are represented by the Harry Fox Agency.
The crux of the issue is that it's a total nightmare to obtain publishing licenses from Harry Fox. Harry Fox barely knows what licenses they represent, and in order to grant a publishing license they have to obtain written permission from one of the thousand small publishers that own the license.
Not only that, but sometimes publishing licenses can be issued for only geographic regions so that publisher A owns the rights for North America while publisher B owns the rights for Europe. This is a huge pain in serving music legally over the internet because if you get permission from B but not A you have to figure out the geographic location of all of your subscribers.
So when it's all boiled down, even the copyright holders themselves can get around the legal quagmire that they've constructed to protect their business models.
Copyright on "Catfish"? (Score:2, Interesting)
Examples abound. The New York Times today reports [nytimes.com] (free subscription required) that U.S. fish farmers successfully lobbied for protection against Vietnamese imports by arbitrarily defining the word "catfish". Now Congress has propertized that part of our common English language and given it away to its campaign contributors.
I hold out no hope for Congress and the courts to change copyright law and promote innovation in the wise ways Lessig proposes in his new book. It seems to me instead that we consumers face the choice of allowing complete control, or of violating these laws and engaging in massive piracy a la Napster, only better technologically.
It's time to abandon the World Wide Web and move to Freenet.
Thomas Jefferson made some good points (Score:2, Insightful)
Quote of the day (Score:2, Offtopic)
As anyone who has ever worked for a media company can tell you, "Amen".
Where is info about this concert LL mentions? (Score:1)
I've heard this concert mentioned here before, but have searched all over the place and can't find any information like exact date, time, place, and who's playing.
Does anyone know the specifics?
British people speak English too!! (Score:1)
You'd hope they're talking about the Dutch
slumping concert sales? (Score:1)
So, maybe it isn't that concert sales are bad, as much as people are tired of music that sucks. :)
Questions or Answers (Score:2)