Free Culture

Free Culture

Lessig and Nesson

11:15

Lessig – There is no copyright clause in the Constitution there is a “progress clause”.  “To promote the progress of science and the arts”

Two meanings

1. Advancement
2. spread – distributing knowledge – endless expansion

These are the two core ideas of progress.  It means both.  What congress is supposed to be doing is advancing knowledge and facilitating its spread.

What things affect progress?

1. Law
2. Technology

Both burden and benefit. Tech benefits win it decreases cost of distribution and vice versa.

Law burdens progress with current regime of copyright.  That regime is broken.

Think of pre-digital age. 

Libraries where people were allowed to distribute protected works for free with people across the land .. Govt promoted progress by expanding libraries.  That way of spreading knowledge was burdened by technology – costs of building libraries was expensive.  Books are expensive to print and distributed.  You had to spend a great deal of resources to do it…

Paradoxically the burden of law was light – law regulates “copies”.  Most of the ordinary uses of copiable material in pre-digital age did not produce copy.  Reading, giving copy of book doesn’t regulate copy. 

Publishing a book does produce a copy and thus is regulated by law. 

Fair Use

For example, you may critique my work in Forbes.com and look stupid criticizing my work and that is protected.

In pre-digital era – tech is heavy constraint, law restraint is lite.

Lessig tells the steamboat willy story.  The Walt Disney story is a success story of creativity.  And, the technology cost was heavy – but the law burden was lite as we had tradition of protecting the public domain.

Until 1978 the average term of copyright as 32 years.  Producing a relatively free legal culture.

Now enter the digital age

The magic of bits (back to the Barlow quote)

Radical change in technology radically reduced the costs of spread of material protected.

In 2001, Brewster Kahle, wanted to expand archive.org, to cover books.  Take “out of print” books to scan and make available for free.  Tech costs were tiny. Potential progress is huge.  (Advance)  Could build Library of Alexandria on the Net.

Digital technology enabling creativity that fundamentally alters democratic culture – empowering and enabling access of people because the costs are so small and the internet provides great capacity to spread the information, the knowledge (e.g. advance).  Affecting freedom or power to speak.

This is not broadcast democracy but a bottom up democracy.  P2P democracy.

Potential progress is enormous.  More than Jefferson or Madison imagined when the created the “progress” clause.

This power is only constrained by legal restrictions.

So we are in middle of copyright war.  Valenti is referring to this as a “terrorist war”.  Valenti thinks digital is death.

Lobbyists convinced congress that constant value is depleted by digital technologies.

But, in reality, copyright law has changed, not remained constant.

Changes

1)      Term has expanded

a.       Life plus 70 years

2)      Renewal

a.       Was one

b.      Not required today – is automatic

3)      Formalities

a.       Used to have to register to get protection

b.      Now no registration

1790-1800 only 10 percent of works received copyright

1800-1976 about 25% of works received copyright

1976 -        100 percent upon publication gets copyright

Force

Technology restricts use (e.g. Adobe book reader which says you can or cannot print, excerpt or read aloud)

The law supports the technology by preventing you from hacking around the code.

(Lessig just said outside of Georgia you are allowed to dance to jazz.  Ok, Frank, help me defend the state, we aren’t that bad)

We have never lived in a time where fewer people controlled the behavior of more people.

So, how do you get permission to quote from a work.  There is no longer a register, a list of copyright owners.  How do you track it down?  This is a totally irrational system.

So, in order to speak, you have to ask the copyright owner first.

Documentary about Iraq war – Uncovered: The whole truth about the Iraq War.

Uncovered was set to be released in August of the year.

Went to include a one minute interview of Tim Russerts interview with President Bush.  NBC said no as they thought the interview did not make the President look good.  And threatened major lawsuits if the film were distributed.

An extraordinary restriction on speech. In my view, law is not allowed to restrict your speech unless there is an extraordinary justification.  So, where is the justification?

Radicals have achieved massive change in culture, administration in the last 30 years.

This change burdens progress and destroys potential – for what?

This war has costs – progress, libraries, economic growth.

But, collateral costs –

1)      Increasingly difficult when we constantly fight battles like suing 12 year olds which doesn’t do much to encourage people to follow a law that allows 12 ear olds to be sued

2)      Extremism is begetting extremism – which is profoundly disruptive of free society.

3)      Rule of law is interpreted by people as unjust rule – so they say “to hell with it”. (Hmmm… another control, not wanted, not needed).

4)      The response of the industry is to wage more effective war of prohibition

So, how do you wage peace here?

He supports Fisher’s effort to make behavior legitimate. 

Make technology work for the law.

Creative Commons is a compliment or alternative to current regime.

RIAA response to the Internet is to kill it…. A disney response is to understand the internet and make it sing…

HR 107 – effort to modify DMCA to say tech can’t block non-infringing uses.  You should have right to use tech to restore fair use rights.

“Copyright is just like dirt” “There is no defense between property right in copyright or property right in dirt.”  Cong. Otter

How do you get Congress to provide for progress if you can’t get them to focus on the real issues?

Nesson walks through some key points in Lessig’s new book – Free Culture.

Looks at statements that show Lessig isn’t for the total destruction of copyright and he does support payments to authors.   Hollywood has a legitimate concern that tech makes it easier to destroy their copyright. 

You realize Fisher’s proposal completely depends upon the government, the very same one that has created the ridiculous regime we have today – and you conclude the Fisher scheme is not realistic.

What is your solution?

Lessig –

We are in the middle of a transition of the architecture of the net.  Given inefficiencies of broadband, the natural to get access to content is to “hoard” content.  If FCC doesn’t screw it up… and wireless develops – we imagine in next 10 years people having ubiquitous internet… so, people no longer have to be mini data base managers.  You just want to listen to music… you are much less likely to hoard.

Suggests to me the problem recording industry is facing is a short term problem. 

So, set up council to determine what they are losing, multiply by five and write them a check in exchange the RIAA etc stop trying to kill the technology.

We proposed a modification of the DMCA requiring a $1 renewal fee after 50 years

Schools project – get a bunch of kids to make digital movies.  Get lawyers to critique movies.  In audience are parents of the kids.  Lawyers note violations.  Parents get outraged at well, the outrageousness.