On Copyright Law

ColbertSteven Colbert’s interview w/ Lawrence Lessig has been sited as definitive proof of someone intelligently trashing Lessig’s beliefs.

“A hybrid economy is an economy where we go off gasoline?”

The above question from Mr. Colbert during the interview with Lessig should immediately let the viewer know that he is simply parodying the right wing pundit buffoon that he normally does on his show. When Colbert says “copy written” his opinion should be thrown out immediately. He’s smart enough to know that the term is actually “copyrighted.” The act of writing on Lessig’s book cover with a marker and drawing Snoopy on the inner pages is clearly proving his point of benefiting from a remix. He goes on to ironically dissuade people from remixing this very interview to be used in dance clubs.

Here is just one remix I found on YouTube that Mr. Colbert specifically asked his viewers to not do. Notice that it has over 100,000 views. I’m confident in my belief that he specifically asks viewers not to do something so he can distance himself from any legal ramifications that might crop up. In this sense, asking viewers to not do something is actually asking viewers to do what he’s asking them not to do.

Colbert does make the point that Congress hasn’t passed legislation and not a lot of people are being prosecuted, but the goes on to posit we should all just forget about it. Therein lies the point that Lessig – and Colbert by way of irony – are actually making. Should we just forget about things that are not on Congress’ list of things to do because people aren’t being prosecuted? It’s the system that has this possibility of punishment that we should seek to reform. The fact that 70% of Americans are technically guilty of copyright infringement should send alarm bells ringing for everyone. Even though companies aren’t prosecuting these people we should still work to change the law, because the fact remains that some people are being prosecuted. The fact that Lessig is on the front lines of this battle is good. Mr. Lessig should be commended, not derided.

Lessig elucidates his point in his book Free Culture. 


“Overregulation stifles creativity. It smothers innovation. It gives dinosaurs a veto over the future. It wastes the extraordinary opportunity for a democratic creativity that digital technology enables.”

Lessig continues.

“The content industry’s tactics exploit the failings of the American legal system. When the RIAA brought suit against Jesse Jordan, it knew that in Jordan it had found a scapegoat, not a defendant. The threat of having to pay either all the money in the world in damages ($15,000,000) or almost all the money in the world to defend against paying all the money in the world in damages ($250,000 in legal fees) led Jordan to choose to pay all the money he had in the world ($12,000) to make the suit go away. The same strategy animates the RIAA’s suits against individual users. In September 2003, the RIAA sued 261 individuals—including a twelve-year-old girl living in public housing and a seventy-year-old man who had no idea what file sharing was. As these scapegoats discovered, it will always cost more to defend against these suits than it would cost to simply settle. (The twelve year old, for example, like Jesse Jordan, paid her life savings of $2,000 to settle the case.) Our law is an awful system for defending rights. It is an embarrassment to our tradition. And the consequences of our law as it is, is that those with the power can use the law to quash any rights they oppose.”

Let’s just take a minute and think about what Lessig has said here. A twelve-year-old girl who lived in public housing paid her life savings of $2,000 to make a lawsuit go away. From the article:

“The seventh-grade honor student was…the first to settle with the record labels, which agreed…to drop their case against her in exchange for $2,000 and an apology.

‘I am sorry for what I have done,’ [she] said in a statement issued by the Recording Industry Assn. of America, which represents the labels. ‘I love music and don’t want to hurt the artists I love.’

[Her] predicament landed on the front pages of New York’s two leading tabloids… and lured an encampment of reporters to the Manhattan apartment where she lives with her mother and 9-year-old brother.

When she learned she was being sued for downloading songs such as ‘If You’re Happy and You Know It’ and the theme to the television show ‘Family Matters,’ she told the New York Daily News that her ’stomach is all in knots.’”

How does that make you feel about this law? Does it sit right with you? Do you think it is justifiable that the RIAA sued a youngster for simply downloading songs that she liked? Do you see any possibility of her making money from this “illegal” downloading? I, for one, do not. I believe it is deplorable for a massive organization like the RIAA to sue a young girl and demand an apology. If ever there were an example of bullying, this is it.

Lessig explains in his book that the practice of “stealing” a copyrighted work via peer-to-peer sharing is starkly different as well.

“…when you take a book from Barnes & Noble, it has one less book to sell. By contrast, when you take an MP3 from a computer network, there is not one less CD that can be sold…The physics of the piracy of the intangible are different from the physics of the piracy of the tangible.”

Lessig still believes this kind of piracy is wrong and that an example like this “should push us to find a way to protect artists while enabling…sharing to survive.”

Jaron Lanier offers his own idea of how we can make this work with a system of micro payments.

“Everybody would have access to everything, but there would be little micro payments flowing around. So if somebody derived something from your work, they would be able to figure out it was really you so nothing would be anonymous. Little pennies would flow to you and more and more people would find a way to make a living from creativity. What we have instead is a world where creativity flows around for free because we’re all supposed to be a part of this ‘Creative Commons’ and so forth. Meanwhile we’re told to become more physical in our way of making a living… to make t-shirts or something.”

He continues.

“Ted Nelson’s idea for micropayment with attribution is, I think, a beautiful notion. And so then everything would be accessible. It wouldn’t be free, but it would be affordable. I think it’s a way to have sort of a society with liberties of capitalism with the equity of socialism.”

I think Lanier’s advancement of Tim Nelson’s idea of micro payments is a brilliant idea. I hope the Mr. Lessig would feel the same way. Based on Lessig’s book, I don’t see any evidence that would make him the least bit opposed to Lanier’s idea.

Some people like David Karpf think of Lanier as a “curmudgeon” after reading a biographic article in the New Yorker. Furthermore, Karpf thinks Lanier is being a “myopic technologist.” I’d also like to point out that Karpf — or someone he knows — has picked out the exact same WordPress blog theme as I have. Well done.

Back to Karpf’s theory on Lanier being a “myopic technologist. I don’t agree. I think Karpf is reading too much into Lanier’s writing style, especially when he calls it “muddy” and derides Lanier’s penchant to quickly jump from one subject to the next. As a technology layman, I enjoy Lanier’s writing style. He discusses such heady, complex issues that I’m fine with him only using a couple of pages to explain one argument. It allows me truly digest it and read it again if I don’t quite grasp it on the first time through.

Lanier’s books You Are Not a Gadget: A Manifesto and Who Owns the Future are lovely books. The same goes for Lawrence Lessig. I’ve read Free Culture, but not his other works. In my opinion, both men are brilliant men with erudite evaluations of copyright law.

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