[Reader-list] In Defense of Piracy - Lawrence Lessig

[Jeebesh]

OCTOBER 11, 2008
Essay

In Defense of Piracy

Digital technology has made it easy to create new works from existing  
art, but copyright law has yet to catch up.

By LAWRENCE LESSIG
http://online.wsj.com/article/SB122367645363324303.html

In early February 2007, Stephanie Lenz's 13-month-old son started  
dancing. Pushing a walker across her kitchen floor, Holden Lenz  
started moving to the distinctive beat of a song by Prince, "Let's Go  
Crazy." He had heard the song before. The beat had obviously stuck. So  
when Holden heard the song again, he did what any sensible 13-month- 
old would do -- he accepted Prince's invitation and went "crazy" to  
the beat. Holden's mom grabbed her camcorder and, for 29 seconds,  
captured the priceless image of Holden dancing, with the barely  
discernible Prince playing on a CD player somewhere in the background.

Ms. Lenz wanted her mother to see the film. But you can't easily email  
a movie. So she did what any citizen of the 21st century would do: She  
uploaded the file to YouTube and sent her relatives and friends the  
link. They watched the video scores of times. It was a perfect YouTube  
moment: a community of laughs around a homemade video, readily shared  
with anyone who wanted to watch.

Sometime over the next four months, however, someone from Universal  
Music Group also watched Holden dance. Universal manages the  
copyrights of Prince. It fired off a letter to YouTube demanding that  
it remove the unauthorized "performance" of Prince's music. YouTube,  
to avoid liability itself, complied. A spokeswoman for YouTube  
declined to comment.

This sort of thing happens all the time today. Companies like YouTube  
are deluged with demands to remove material from their systems. No  
doubt a significant portion of those demands are fair and justified.  
Universal's demand, however, was not. The quality of the recording was  
terrible. No one would download Ms. Lenz's video to avoid paying  
Prince for his music. There was no plausible way in which Prince or  
Universal was being harmed by Holden Lenz.

YouTube sent Ms. Lenz a notice that it was removing her video. She  
wondered, "Why?" What had she done wrong? She pressed that question  
through a number of channels until it found its way to the Electronic  
Frontier Foundation (on whose board I sat until the beginning of  
2008). The foundation's lawyers thought this was a straightforward  
case of fair use. Ms. Lenz consulted with the EFF and filed a "counter- 
notice" to YouTube, arguing that no rights of Universal were violated  
by Holden's dance.

Yet Universal's lawyers insist to this day that sharing this home  
movie is willful copyright infringement under the laws of the United  
States. On their view of the law, she is liable to a fine of up to  
$150,000 for sharing 29 seconds of Holden dancing. Universal declined  
to comment.

How is it that sensible people, people no doubt educated at some of  
the best universities and law schools in the country, would come to  
think it a sane use of corporate resources to threaten the mother of a  
dancing 13-month-old? What is it that allows these lawyers and  
executives to take a case like this seriously, to believe there's some  
important social or corporate reason to deploy the federal scheme of  
regulation called copyright to stop the spread of these images and  
music? "Let's Go Crazy" indeed!

It doesn't have to be like this. We could craft copyright law to  
encourage a wide range of both professional and amateur creativity,  
without threatening Prince's profits. We could reject the notion that  
Internet culture must oppose profit, or that profit must destroy  
Internet culture. But real change will be necessary if this is to be  
our future -- changes in law, and changes in us.

For now, trials like Ms. Lenz's are becoming increasingly common. Both  
professionals, such as the band Girl Talk or the artist Candice  
Breitz, and amateurs, including thousands creating videos posted on  
YouTube, are finding themselves the target of overeager lawyers.  
Because their creativity captures or includes the creativity of  
others, the owners of the original creation are increasingly invoking  
copyright to stop the spread of this unauthorized speech. This new  
work builds upon the old by in effect "quoting" the old. But while  
writers with words have had the freedom to quote since time  
immemorial, "writers" with digital technology have not yet earned this  
right. Instead, the lawyers insist permission is required to include  
the protected work in anything new.

Not all owners, of course. Viacom, for example, has effectively  
promised to exempt practically any amateur remix from its lawyers'  
concerns. But enough owners insist on permission to have touched, and  
hence, taint, an extraordinary range of extraordinary creativity,  
including remixes in the latest presidential campaign. During the  
Republican primary, for example, Fox News ordered John McCain's  
campaign to stop using a clip of Sen. McCain at a Fox News-moderated  
debate in an ad. And two weeks ago, Warner Music Group got YouTube to  
remove a video attacking Barack Obama, which used pieces of songs like  
the Talking Heads' "Burning Down the House." (Spokesman Will Tanous of  
Warner Music Group, which represents the Talking Heads, says the  
request came from the band's management.) Around the same time, NBC  
asked the Obama campaign to pull an ad that remixed some NBC News  
footage with Tom Brokaw and Keith Olbermann.

We are in the middle of something of a war here -- what some call "the  
copyright wars"; what the late Jack Valenti called his own "terrorist  
war," where the "terrorists" are apparently our kids. But if I asked  
you to shut your eyes and think about these "copyright wars," your  
mind would not likely run to artists like Girl Talk or creators like  
Stephanie Lenz. Peer-to-peer file sharing is the enemy in the  
"copyright wars." Kids "stealing" stuff with a computer is the target.  
The war is not about new forms of creativity, not about artists making  
new art.

Yet every war has its collateral damage. These creators are this war's  
collateral damage. The extreme of regulation that copyright law has  
become makes it difficult, sometimes impossible, for a wide range of  
creativity that any free society -- if it thought about it for just a  
second -- would allow to exist, legally. In a state of "war," we can't  
be lax. We can't forgive infractions that might at a different time  
not even be noticed. Think "Eighty-year-old Grandma Manhandled by TSA  
Agents," and you're in the right frame for this war as well.

The work of these remix creators is valuable in ways that we have  
forgotten. It returns us to a culture that, ironically, artists a  
century ago feared the new technology of that day would destroy. In  
1906, for example, perhaps America's then most famous musician, John  
Phillip Sousa, warned Congress about the inevitable loss that the  
spread of these "infernal machines" -- the record player -- would  
cause. As he described it:

"When I was a boy...in front of every house in the summer evenings you  
would find young people together singing the songs of the day or the  
old songs. Today you hear these infernal machines going night and day.  
We will not have a vocal chord left. The vocal chords will be  
eliminated by a process of evolution, as was the tail of man when he  
came from the ape."

A professional fearful that new technology would destroy the amateur.  
"The tide of amateurism cannot but recede," he predicted. A recession  
that he believed would only weaken culture.

A new generation of "infernal machines" has now reversed this trend.  
New technology is restoring the "vocal chords" of millions. Wikipedia  
is a text version of this amateur creativity. Much of YouTube is the  
video version. A new generation has been inspired to create in a way  
our generation could not imagine. And tens of thousands, maybe  
millions, of "young people" again get together to sing "the songs of  
the day or the old songs" using this technology. Not on corner  
streets, or in parks near their homes. But on platforms like YouTube,  
or MySpace, with others spread across the world, whom they never met,  
or never even spoke to, but whose creativity has inspired them to  
create in return.

The return of this "remix" culture could drive extraordinary economic  
growth, if encouraged, and properly balanced. It could return our  
culture to a practice that has marked every culture in human history  
-- save a few in the developed world for much of the 20th century --  
where many create as well as consume. And it could inspire a deeper,  
much more meaningful practice of learning for a generation that has no  
time to read a book, but spends scores of hours each week listening,  
or watching or creating, "media."

Yet our attention is not focused on these creators. It is focused  
instead upon "the pirates." We wage war against these "pirates"; we  
deploy extraordinary social and legal resources in the absolutely  
failed effort to get them to stop "sharing."

This war must end. It is time we recognize that we can't kill this  
creativity. We can only criminalize it. We can't stop our kids from  
using these tools to create, or make them passive. We can only drive  
it underground, or make them "pirates." And the question we as a  
society must focus on is whether this is any good. Our kids live in an  
age of prohibition, where more and more of what seems to them to be  
ordinary behavior is against the law. They recognize it as against the  
law. They see themselves as "criminals." They begin to get used to the  
idea.

That recognition is corrosive. It is corrupting of the very idea of  
the rule of law. And when we reckon the cost of this corruption, any  
losses of the content industry pale in comparison.

Copyright law must be changed. Here are just five changes that would  
make a world of difference:

Deregulate amateur remix: We need to restore a copyright law that  
leaves "amateur creativity" free from regulation. Before the 20th  
century, this culture flourished. The 21st century could see its  
return. Digital technologies have democratized the ability to create  
and re-create the culture around us. Where the creativity is an  
amateur remix, the law should leave it alone. It should deregulate  
amateur remix.

What happens when others profit from this creativity? Then a line has  
been crossed, and the remixed artists plainly ought to be paid -- at  
least where payment is feasible. If a parent has remixed photos of his  
kid with a song by Gilberto Gil (as I have, many times), then when  
YouTube makes the amateur remix publicly available, some compensation  
to Mr. Gil is appropriate -- just as, for example, when a community  
playhouse lets neighbors put on a performance consisting of a series  
of songs sung by neighbors, the public performance of those songs  
triggers a copyright obligation (usually covered by a blanket license  
issued to the community playhouse). There are plenty of models within  
the copyright law for assuring that payment. We need to be as creative  
as our kids in finding a model that works.

Deregulate "the copy": Copyright law is triggered every time there is  
a copy. In the digital age, where every use of a creative work  
produces a "copy," that makes as much sense as regulating breathing.  
The law should also give up its obsession with "the copy," and focus  
instead on uses -- like public distributions of copyrighted work --  
that connect directly to the economic incentive copyright law was  
intended to foster.

Simplify: If copyright regulation were limited to large film studios  
and record companies, its complexity and inefficiency would be  
unfortunate, though not terribly significant. But when copyright law  
purports to regulate everyone with a computer, there is a special  
obligation to make sure this regulation is clear. It is not clear now.  
Tax-code complexity regulating income is bad enough; tax-code  
complexity regulating speech is a First Amendment nightmare.

Restore efficiency: Copyright is the most inefficient property system  
known to man. Now that technology makes it trivial, we should return  
to the system of our framers requiring at least that domestic  
copyright owners maintain their copyright after an automatic, 14-year  
initial term. It should be clear who owns what, and if it isn't, the  
owners should bear the burden of making it clear.

Decriminalize Gen-X: The war on peer-to-peer file-sharing is a  
failure. After a decade of fighting, the law has neither slowed file  
sharing, nor compensated artists. We should sue not kids, but for  
peace, and build upon a host of proposals that would assure that  
artists get paid for their work, without trying to stop "sharing."
—Adapted from "Remix" by Lawrence Lessig, to be published by The  
Penguin Press on Oct. 16, 2008. Copyright by Lawrence Lessig, 2008.  
Printed by arrangement with The Penguin Press, a member of Penguin  
Group (USA) Inc.

Lawrence Lessig is a professor of law at Stanford Law School, and co- 
founder of Creative Commons.