Copyright in the Digital Age
Professor, Stanford Law School
Wednesday, April 14, 2004; 1:00 PM
Stanford Law School professor Lawrence Lessig was online to discuss his
book, "Free Culture: How Big Media Uses Technology and the Law to Lock
Down Culture and Control Creativity." In his book, Lessig argues that the
entertainment industry conspires with Congress to use copyright law to
destroy our traditional notion of freedom in culture.
washingtonpost.com reporter David McGuire moderated the discussion.
A transcript follows.
Editor's Note: Washingtonpost.com moderators retain editorial control over
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David McGuire: Dr. Lessig, thanks for joining us. In your new book: "Free
Culture: How Big Media Uses Technology and the Law to Lock Down Culture
and Control Creativity," you argue that the debate over piracy has
obscured a larger movement on the part of the media industry (movie, music
and software makers) to "remake the Internet, before it remakes them."
How, practically, is that movement unfolding? Where are those battles
Lawrence Lessig: The content industry has done a good job convincing the
world that the internet will enable what they call "piracy." That has
obscured the fact that the internet will also enable an extraordinary
potential for creativity. And it has obscured the fact that the weapons
they use to eradicate "piracy" will also destroy the environment for this
"creativity." They spray DDT to kill a gnat. We say: "Silent Spring."
Bellingham, Wash.: What are your thoughts on the debate on
anticircumvention regulations and how they may impact fair use? Do
antipiracy concerns outweigh the importance of allowing legitimate uses of
circumvention software (for example, by DVD owners making backup copies)?
Lawrence Lessig: The anticircumvention regulations of the DMCA have been
interpreted in a way that does plainly restrict any sensible understanding
of "fair use." They are therefore regulations that will be found, imho, to
violate the constitution. As the Court indicated in Eldred, fair use has a
constitutional basis. Congress is not free simply to remove it. Thus
whether Congress – "persuaded" by the content industry – believes that
antipiracy concerns outweigh the constitution or not, no law may outweigh
Washington, D.C.: You are on the board of the Electronic Frontier
Foundation, which has recently volunteered to defend alleged copyright
infringers that are being sued by copyright holders, the RIAA.
As a law professor and a copyright holder yourself (Free Culture book), do
you feel that the RIAA has a legitimate gripe in protecting what property
is legally belongs to them?
Would you support a foundation established to defend literary copyright
suits, if professors were to crack down on student text book copying - or
even worse, yours?
Lawrence Lessig: I believe that copyrights, properly defined and
reasonably balanced, ought to be defended by copyright owners, and
organizations (whether the RIAA or others) devoted to defending such
rights. I'm sure everyone at the EFF believes the same. But just as a
lawyer who defends someone charged with auto theft does not therefore
support auto theft, so too with the EFF: They are, rightly, defending the
rights of individuals that they believe, rightly, should not be prosecuted
in this way under this law.
As a law professor – and more importantly, as a citizen of the United
States – I absolutely support their actions. We here are supposed to
believe in the right to a defense. We are supposed to believe that laws
are not to be overreaching in their effect. We are supposed to oppose
abuse of the power of prosecution. And I fundamentally oppose those who
would question anyone who would defend rights that our constitution was
designed to guarantee.
Washington, D.C.: Good afternoon - Prof. Lessig, will you state once and
for all that the widespread theft (or whatever term you wish to apply) of
copyrighted works online is illegal? Can the conversation about copyrights
in the digital age at least recognize this? Don't you feel that it is a
dangerous society that believes that because the Internet lets you do
something, it is permissible to do so...whether morally or legally right
or wrong? I find that in all of your articulate presentations, you seem to
blame the people who create and invest in the creation of music, movies
etc. and place no blame on those who take those works without compensating
the artists/copyright holders.
Lawrence Lessig: Great question. First, I have "recognized" this. Here's a
great derivative work of my book – permitted because I released my book
free under a Creative Commons license.
On that page, each paragraph of my book has been marked by its own url. As
you'll see at paragraphs 84, 110, 367, 372, 377, 382, 388, 389, to mark a
few. Or go to (http://free-culture.org) and download the book and look at
the section "Why Hollywood is Right" beginning at 124.
But my whole point is that if we as a people can think about only one
issue at a time, then we as a culture are doomed. For if we set our policy
focused on one end only – ending piracy – then we will end a tradition
of free culture as well.
Yet the content industry has done so well because they've convinced DC
that there is really just one issue out there – piracy. And they
certainly are more successful than I in shaping this debate. So it may
well be that we as a people can think about only one issue at a time. And
again, if so, then we as a culture are doomed.
Takoma Park, Md.: Is it fair to call pervasive free availability of any
copyrighted song anyone can think of a "gnat"? I appreciate your concerns
but it seems to me that you're downplaying the impact of file-sharing on
Lawrence Lessig: Is it fair? Well, what's the harm. In my book, I assumed
there was a substantial harm, and the question I asked is: how might we
minimize the harm while not destroying the internet or its potential. So I
would push for different policies even assuming the gnat is a lion.
But since my book was published, there has been substantial work – by
independent researchers, not paid by the content industry or anyone else
– to suggest that there is no substantial harm from p2p sharing. More
precisely, that when you add up all the effects (people exposed to new
content which they buy, etc.), the effect of sharing is statistically
indistinguishable from zero.
Whether you buy that analysis or not – and, I think we should remain
skeptical about it until it has had a good chance for further peer review
– I do think that relative to what we lose by waging this war, the
interests of one particular industry are small.
By this system of federal regulation, we are creating a regime of
creativity where the only safe way to create is to ask permission first.
You might think that's simple, but just try it someday. But I'm with those
who think that there's something fundamentally wrong about this regime,
whether it is simple or not. I as an academic don't need anyone's
permission before I write an article criticizing someone else. But the
same freedom is not accorded a filmmaker, or webmaster, under the rules as
they exist today.
Madrid, Spain: Do you really think there will be a unbreakable technology
to protect CD, video or stop MP3 exchanges in the web? In others words, is
it possible to protect intelectual property with a piece of software? Do
you really think the technological measures will be effective?
Lawrence Lessig: By "do you really think" you make it sound as if I've
suggested such a "solution." I have not. Indeed, I think all solutions
that rely upon technology to control access suffer important and
unavoidable costs. More importantly, an arms race around technologies for
locking up and liberating content is a waste. We should push for a regime
that helps assure artists get paid without simultaneously breaking the
most valuable features of the internet.
New Orleans, La.: Do you think that the Court's strict constructionist
reading of the Copyright Clause in Eldred blows open the door to the
continued and expanding success of special interests appropriating the
Lawrence Lessig: Yes, it absolutely does. By ignoring the original meaning
of the constitution's text – indeed, by ignoring even the text, for the
Court does not even try to explain what the words "to promote the Progress
of Science" means – the Court has given Congress, and lobbyists, a
green-light to continue what they have done so well over the past 40 years
– extend the term of existing copyrights. It is totally obvious that in
2018, there will be another bill to extend copyright terms. It is totally
obvious that all the money in the world will be spent by those who have
copyrights that are about to expire. And totally obvious that nothing
(yet) in the Court's jurisprudence that would stop such an extension.
Now of course, there's lots that can, and must be done, independent of the
Court. PublicKnowledge.org, for example, is doing a great deal of good to
get Congress to consider reasonable balances in the field of copyright.
They have, for example, taken up the challenge of getting congress to pass
the Public Domain Enhancement Act, which would require a copyright owner,
50 years after a work has been published, to register the work and pay $1.
If the owner pays the $1, he or she gets the benefit of whatever term
Congress has set. If he or she does not, the work passes into the public
domain. We know from historical data that more than 85% of copyrighted
work would pass into the public domain after just 50 years under such a
regime – clearing away a mass of legal regulation governing the ability
of people to reuse culture. But even this reasonable proposal is being
resisted by, for example, the MPAA.
Georgetown: Isn't the source of the problem in copyright law the extension
of the copyright to derivative works? This aspect of copyright should be
limited or eliminated after, say 50 years. That way Disney would be able
keep selling its classics while the others would be able to use the work
as the basis for new creations.
Have there been any such proposals in Congress?
Lawrence Lessig: This is a great suggestion. Yes, the one really radical
way in which copyright law today differs from the copyright law our
framers gave us is derivative rights: They didn't protect them, and we do.
And that extension does, in my view, muddy many issues. I understand and
support laws which control the ability of A to sell a verbatim copy of B's
copyrighted work without B's permission. But whatever wrong that is, it is
totally different from the "wrong" of building a work based on B's work.
Our law does not adequately distinguish between the two, and it should. A
shorter term might be one solution. I suggest others in my book. But it is
plainly an area where serious reform could do serious good.
Washington, D.C.: How is distributing copies of copyrighted works to a
stranger without the authorization of the artist, as in P2P, not a
violation of copyright? Do you not agree that an artist's ability to
copyright his work, if he chooses to, creates incentives for that artist
to innovate and create? Without intellectual property protections
incentives to innovate disappear.
Lawrence Lessig: So I answered something close to this question before, so
I won't repeat what I said there. But in summary:
(1) "How is distributing copies of copyrighted works to a stranger without
the authorization of the artist, as in P2P, not a violation of copyright?"
It may be under the law as it is just now. I've not contested that
(2) "Do you not agree that an artist's ability to copyright his work, if
he chooses to, creates incentives for that artist to innovate and create?"
OF COURSE I do! Absolutely it does. And most of my work these days is
devoted to making it easier for ARTISTS to choose how best to deploy the
rights the law gives them. (see, e.g., http://creativecommons.org).
(3) "Without intellectual property protections incentives to innovate
In some contexts, absolutely correct. In other contexts, no. There's
plenty of incentive to innovate around Shakespeare's work, even though no
one has a copyright in Shakespeare. There's would be plenty of incentive
for law professors to blather on endlessly in law review articles, even
without copyright protection. In my view, rather than treating (3) as a
matter of ideology, we should treat (3) as a question of fact: IP is a
form of regulation; regulation makes sense where it does more good than
harm. So we should be asking where IP protection does more good than harm.
David McGuire: Does the pending case of 321 Studios over its DVD X Copy
software – which allows users to make copies of their DVDs – seem to you
a likely vehicle to address some of these fair use concerns before the
Lawrence Lessig: I don't think the Supreme Court is ready for these
issues. I thought it was. I was wrong. I believe 321 should prevail in the
case, and I hope it does. But the hysteria around this "war" is too great
just now for this Court to consider the matter with the usual balance of
judgment it has displayed in (most) copyright cases.
Alexandria, Va.: If a company has a valuable copyright and it wants to
continue making money off it, why should it not be able to renew that
copyright forever? I understand what copyright law says, but isn't it
naive or even greedy to suggest that everything we create should
ultimately be given away?
Lawrence Lessig: Well, first one might point out that the Constitution
says Congress can grant copyrights to "Authors" not companies. Second, one
might observe that the Constitution says Congress can secure "exclusive
rights" for "limited times." And third, one might ask when the term
granted corporations is already almost a century, who's being "greedy"
Of course one might well say the framers were idiots about this, and we
should reject their wisdom and follow the wisdom of corporate lobbyists on
But I'd rather focus on the agreement we have: you write, "why should it
not be able to renew that copyright forever?" I'm all in favor of a
renewal requirement. Indeed, I've proposed a relatively long term (75
years) so long as the copyright owner "renews" the copyright every 5 year.
No doubt that might sound like a hassle – and it is, given the way the
government typically does things. But imagine one-click renewal. Imagine a
system that was simple. In that world, I'd be totally ok with terms as
long as they are, so long as terms had to be renewed. We know from history
that the vast majority of copyrights – 85% - 95% – would not be renewed
even after 28 years. So my aim – to minimize the senseless burden of
endless terms – would be achieved with a renewal requirement.
Scranton, Pa.: It seems like you think the entertainment industry's
endgame is to control all content from the cradle. At that point,
presumably, all content would be puerile trash. But the industry likes
this idea because we've seen that the average American consumer loves the
smell of garbage. Is this the depressing landscape that you see on the
horizon based on our present course? Or is this scenario extreme?
Lawrence Lessig: I hope it is extreme. But it is an aspect of what I fear.
I think ARTISTS and CREATORS are great. I think our framers intended them
to be benefited by copyright law. But I believe our Congress (and FCC) has
produced a world where PUBLISHERS (in the broadest sense of that term) are
the real beneficiaries of our copyright system. And as they become fat,
slogging giants, the stuff they produce (or allow to be produced) will be
Anaheim, Calif.: Hello, Dr. Lessig. Is there any way to clearly define the
line between fair use and infringement? I am not a copyright expert nor am
I a lawyer. Is there a way to explain your answer in plain English?
Lawrence Lessig: No, there is not, and that 95% of the problem. Fair use
in America is the right to hire a lawyer – which is fine for CBS, or NBC,
but useless for most creators. That's why I've proposed changes that
produce clear lines, rather than lines requiring the services of $300/hr
plus professionals. The great thing about the public domain, for example,
is that it is a lawyer-free zone. Anyone can use anything in the public
domain without asking permission first (except if you use Peter Pan, but
that's another story all together...).
Arlington, Va.: Reps. Boucher and Doolittle have introduced a bill (H.R.
107) that seeks to provide the kind of balance to the DMCA that you
suggest is important. Are you familiar with and, if so, do you support
Lawrence Lessig: Yes, and yes. Boucher and Doolittle have been rare but
important voices of balance in this debate. Zoe Lofgren and Chris Cox too.
All who believe in sanity in this "war" should be doing whatever they can
to support these few, brave souls. Especially Congressman Boucher, who has
a well funded opponent in this race (funded by whom I wonder?)
Flatland Crest, Mont.: You said earlier that if we can only examine one
issue at a time - in this case piracy - then we as a culture are doomed.
Doomed to what? Will artists fail to flourish because the entertainment
industry has a lockdown on copyright? I doubt that a 13-year-old who set
his or her pen to paper and suddenly produces a precocious, beautiful
novel even knows what "Fair Use" means.
Lawrence Lessig: I guess it depends on what you think "fail to flourish"
means. There were many who thought art flourished in the soviet union,
even though the artist couldn't publish or distribute his or her art. Of
course, we're not the soviet union, but the same point is true
nonetheless: I don't believe we have a FREE CULTURE if creativity is
criminal. I don't believe we respect the tradition of FREE SPEECH if the
act of remixing culture is an act that requires permission from publishers
first. I don't believe we will have a vibrant FREE MARKET if it is so
heavily regulated by lawyers. So even if in the dystopian future I
describe, a 13 year old is physically able to create an "precocious
beautiful novel," we don't live in a free culture unless she can create
that work without hiring a lawyer first.
Washington, D.C.: In a recent article published in Forbes by Stephen
Manes, he says that you are going to harm the creator and reward the
people doing illegal activity as well as put "the U.S. at odds with
international law." How do you respond?
Lawrence Lessig: I've responded at length on my blog:
http://lessig.org/blog. But I'll say that there was no review that more
disappointed me than Mr. Manes'. I've got great respect for Forbes the
man, and Forbes the magazine. And as, for example, Stu Baker in the Wall
Street Journal noted, my argument is not really an argument for the left.
Indeed, as he argued quite effectively, it is more powerfully an argument
for the right. (Copyright law, as he put it, is the "asbestos litigation"
of the 21st century). So I was very surprised both with the substance of
Mr. Manes's review (which was unthinking and ill-informed) and with its
tone (which was rude and abusive). Both seemed to me to be beneath the
quality of the publication. And as I said in my first response to Mr.
Manes, it just goes to show how much more work we in this movement have to
make to make our ideas understandable.
Washington, D.C.: Hi Prof. Lessig - with each book that you release on the
subject of IP rights and the 'net, I think you've become more readable for
the masses. I'm thrilled with this, because I think these issues are of
incredible importance for everyone. However, I think that there remains a
long way to go before the general public thinks of "fair use" as anything
other than an excuse used by those music-stealin' college kids. How can we
better present your (our) concerns to the public in a way that helps them
better understand the importance of these things to their lives?
Lawrence Lessig: Thanks for the kind words. It is extraordinarily easy as
a professor to believe your ideas are clear and obviously right. And the
hardest lesson of the last 5 years for me has been the recognition of how
many ideas I was sure are right are, it turns out, wrong, and how hard it
is to make the rest understandable. That's especially hard for me, and it
has taken many years to learn differently.
I agree that it will take a great deal of work to make these ideas even
more understandable. But I think the way to do it is by showing people the
law, not arguing about it. Show parents the extraordinary creativity the
technology of Apple enables. Show them what their kids can do with it –
the music they can make, the films they can produce, etc. And then show
them the billion ways in which the law would deem that creativity
criminal. When people begin to see that this is a war we're waging against
the next generation, they might begin to wake-up to its threat.
(Then again, it's not as if our policy today is really much concerned with
our kids at all. We don't tax ourselves so we can tax our kids (deficits);
we don't pay to clean up our environment so our kids will; we wage wars
that will excite a generation of hatred directed against – again – our
kids. Etc. So I guess it is not surprising that here again, we wage a war
whose primary target and victims will be our kids.)
Edgartown, Mass.: Good afternoon. Is this the first time that you have
permitted your book to be made available for free on the Internet? How are
the sales of your latest book stacking up against your previous works?
Lawrence Lessig: It is the first time I've succeeded in convincing my
publisher, yes. I have tried before, but am blessed this time to have a
great and innovative publisher (Penguin Press) and an astonishing editor.
(It was my editor who did the real work convincing the publisher). And
sales are going much better than with any other book. But the part that
has been the most interesting and surprising to me is not the sales. It is
the derivative works. I released my book under a Creative Commons license,
which left others free to make derivative works. If you go here http://free-culture.cc/remixes/ you can see a list of the amazing number
of "remixes" of the book that people across the net have made. There are
many different formats available now (we released a PDF only). There are
audio versions. There is a Wiki (which allows anyone to change or extend
the book). I never expected the energy that the net has demonstrated. And
as that energy will assure the ideas spread broadly, I am extraordinarily
San Francisco, Calif.: During the mid to late 1970's, the music industry
be came moribund by it marketing ploys of only promoting large sales music
groups who could fill arenas and stadiums. The response of musicians and
consumers to the lack of creativity in rock music were the punk movements
and new wave which developed on small independent labels. These were later
coopted into the larger music industry just as rap was in the '90s. Are
such consumer/artist uprisings still possible in our media controlled
Lawrence Lessig: They are possible, but would be more possible if the law
was not such a heavy handed regulator in this space. More important to me,
it would be possible if labels would be more tolerant of experiments by
authors. Creative Commons, for example, has launched a number of licenses
that enable authors to mark their content with freedoms – freedoms that
will, many believe, lead to more sales of records. But these artists have
been met with strong resistance by the traditional labels. We should all
recognize something that no one admits: None of us know what will work
best in the future. So in the face of that ignorance, we must depend upon
a competitive market offering alternatives, and encouraging experiments.
And a room filled with lawyers is not a great way to inspire
David McGuire: Professor Lessig was good enough to take an extra half hour
to answer more of the many insightful questions we received. Unfortunately
we're out of time. I'd like to thank the professor for taking the time to
join us today and our audience for contributing so many thoughtful
2004 Washingtonpost.Newsweek Interactive