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11_Lessig - 3[Il— E 3 III I Making Art and Commerce...

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Unformatted text preview: 3 [Il— E- 3 III- I. : Making Art and Commerce Thrive —- .— in the Hybrid Economy LAWRENCE LESSIG THE PENGUIN PRESS New York 2008 50 REMIX Wealth ofNatians teaches us about the phenomenal. power of, mar- kets to adjust. But these markets adjust, as Yochai Benklers The Wealth of Networks powerfully teaches, in light of the baseline allocation of rights. Policy makers must assure that rights are not allocated in a way that distorts or weakens competition. A costly overlay of spectrum rights, for example, or an inefficient market of copyrights, can stifle competition and drlve markets to unnecessary concentration. These factors must be regulated by policy makers. They will not be “solved” by an invisible hand. I ‘ . But for my purposes here, the most important policy mistake is one that stifies the Sousarian instinct: a policy driven by the View that the only way to protect RO culture is to render RW culture illegal. That choice is a false choice. In the next Chapter, I want to sketch a Future for RW culture that might motivate us to see )ust why we should avoid this false choice. FOUR RW. REVIVED Wad/Walla} Q ne ofmy closest (if most complicated) friends at college was an English major. He was also a brilliant writer. Indeed, in every class in which writing was the measure, he did as well as one pos- sibly could. In every other class, he, well, didn’t. Ben’s writing had a certain style. Were it music, we’d call it sampling. Were it painting, it would be called collage. Were it digi— tal, we’d call it remix. Every paragraph was constructed through quotes. The essay might be about Hemingway or Proust. But he built the argument by clipping quotes from the authors he was dis- cussing. Their words made his argument. And he was rewarded for it. Indeed, in the circles for which he was writing, the talent and care that his style evinced were a mea- sure of his understanding. He succeeded not simply by stringing quotes together. He succeeded because the salience of the quotes, in context, made a point that his words alone would not. And his selection demonstrated knowledge beyond the message of the text. Only the most careful reader could construct from the text he read another text that explained it. Ben’s writing showed he was an b- 52 REMIX insanely careful reader. His intensely careful reading made him a beautiful writer. Ben’s style is rewarded not just in English seminars. It is the essence ofgood writing in the law. A great brief seems to say noth- ing on its own. Everything is drawn from cases that went before, presented as ifthe argument now presented is in fact nothing new. Here again, the words of others are used to make a point the others didn’t directly make. Old cases are remixed. The remix is meant to do something new. (Appropriately enough, Ben is now a lawyer.) In both instances, of course, citation is required. But the cite is always sufficient payment. And no one who writes for a living actually believes that any permission beyond that simple payment should ever be required. Had Ben written the estate of Ernest Hemingway to ask for permission to quote For Whom the Bell Tolls in his college essays, lawyers at the estate would have been annoyed more than anything else. What weirdo, they would have wondered, thinks you need permission to quote in an essay? So here’s the question I want you to focus on as we begin this chapter: Why is it “weird” to think that you need permission to quote? Why would (or should) we be “outraged” ifthe law required us to ask Al Gore for permission when we wanted to include a quote from his book The Assault on Reason in an essay? Why is an author annoyed (rather than honored) when a high school student calls to ask for permission to quote? The answer, I suggest, has lots to do with the “nature” of writ— ing. Writing, in the traditional sense of words placed on paper, is the ultimate form of democratic creativity, where, again, “demo- cratic” doesn’t mean people vote, but instead means that everyone within a society has access to the means to write. We teach everyone RW. REVIVED 53 to write—in theory, if not in practice. We understand quoting is an essential part of that writing. It would be impossible to construct and support that practice if permission were required every time a quote was made. The freedom to quote, and to build upon, the words of others is taken for granted by everyone who writes. Or put differently, the freedom that Ben took for granted is perfectly natural in a world where everyone can write. Writing Beyond Words Words, obviously, are not the only form of expression that can be remixed in Ben's way. If we can quote text from Hemingway’s For Whom tlze Bell Tolls in an essay, we can quote a section from Sam Wood's film of Hemingway’s For Whom the Bell Tolls in a film. Or if we can quote lyrics from a Bob Dylan song in a piece about Vietnam, we can quote a recording of Bob Dylan singing thOse lyr— ics in a video about that war. The act is the same; only the source is different. And the measures of fairness could also be the same: 15 it really just a quote? Is it properly attributed? And so on. Yet, however similar these acts of quoting may be, the norms governing them today are very different. Though I’ve not yet found anyone who can quite express why, any qualified Hollywood law- yer would tell you there’s a fundamental difference between quot- ing Hemingway and quoting Sam Wood’s version of Hemingway. The same with music: in an opinion by perhaps one of the twenti- eth century’s worst federal judges, Judge Kevin Thomas Duffy, the court issued “stern” sanctions against rap artists who had sampled another musical recording. Wrote the judge, “— 51. REMIX “Thou shalt not steal" has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of busi- ness this admonition is not always followed. Indeed, the defenv dants in this action for copyright infringement would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused. The con— duct ofthe defendants herein, however, violates not only the Sev— enth Commandment, but also the copyright laws ofthis country.1 Whether justified or not, the norms governing these forms of expression are far more restrictive than the norms governing text. They admit none of the freedoms that any writer takes for granted when writing a college essay, or even an essay for the New Yorker. Why? A complete answer to that question is beyond me, and therefore us, here. But we can make a start. There are obvious differences in these forms of expression. The most salient for our purp05es is the democratic difference, historically, in these kinds of “writing.” While writing with text is the stuff that everyone is taught to do, filmmaking and record making were, for most of the twentieth century, the stuffthat professionals did. That meant it was easier to imagine a regime that required permission to quote with film and music. Such a regime was at least feasible, even if inefficient. But what happens when writing with film (or music, or images, or every other form of “professional speech" from the twentieth century) becomes as democratic as writing with text? As Negativ— land’s Don once described to me, what happens when technology “democratiz[es] the technique and the attitude and the method [of creating] in a way that we haven't known before....[I]n terms of collage, [what happens when] anybody can now be an artist”?2 __..o .. mm“...- RW. REVIVED 55 What norms (and then law) will govern this kind of creativ— ity? Should the norms we all take for granted from writing be applied to video? And music? Or should the norms from film be applied to text? Put differently: Should the “ask permission" norms be extended from film and music to text? Or should the norms of “quote freely, with attribution" spread from text to music and film? At this point, some will resist the way I’ve carved up the choices. They will insist that the distinction is not between text on the one hand and film/music/images on the other. Instead, the distinction is between commercial or public presentations of text/film/music/ images on the one hand, and private or noncommercial use oftext/ film/music/images on the other. No one expects my friend Ben to ask the Hemingway estate for permission to quote in a college essay, because no one is publishing (yet, at least) Ben’s college essays. And in the same way, no one would expect Disney, for example, to have any problem with a father taking a clip from Superman and including it in a home movie, or with kids at a kindergarten paint- ing Mickey Mouse on a wall. Yet however sensible that distinction might seem, it is in fact not how the rules are being enforced just now. Again, Ben’s freedom with text is the same whether it is a college essay or an article in the New Yorker (save perhaps if he’s writing about poetry). And in fact, Disney has complained about kids at a kindergarten painting Mickey on a wall.3 And in a setup by I. D. Lasica, every major stu— dio except one insisted that a father has no right to include a clip of a major film in a home movie—even if that movie is never shown to anyone except the family—without paying thousands of dollars to do so.‘ However sensible, the freedom to quote is not universal in the 56 REMIX noncommercial sphere. Instead, those in thousand-dollar suits typi- cally insist that “permission is vital, legally.” Nor do I believe the freedom to quote should reach universally only in the noncommercial sphere. In my view, it should reach much broader than that. But before I can hope to make that norma- tive argument stick, we should think more carefully about why this right to quotew—or as I will call it, to remix—is a critical expression of creative freedom that in a broad range of contexts, no free society should restrict. Remix is an essential act of RW creativity. It is the expression of a freedom to take “the songs of the day or the old songs” and create with them. In Sousa’s time, the creativity was performance. The selection and arrangement expressed the creative ability ofthe singers. In our time, the creativity reaches far beyond performance alone. But in both contexts, the critical point to recognize is that the RW creativity does not compete with or weaken the market for the creative work that gets remixed. These markets are complemen— ta ry, not competitive. That fact alone, of course, does not show that both markets shouldn’t be regulated (that is, governed by rules of copyright). But as we‘ll see in the next part ofthe book, there are important reasons why we should limit the regulation of copyright in the contexts in which RW creativity is likely to flourish most. These reasons reflect more than the profit of one, albeit important, industry; instead, they reflect upon a capacity for a generation to speak. I start with a form of RW culture that is closest to our tradition of remixing texts. From that beginning, I will build to the more significant forms of remix now emerging. In the end, my aim is to draw all these forms together to point to a kind of speech that will RW. REVIVED 67 seem natural and familiar. And a kind of freedom that will feel inevitable. Remixed: Text There is a thriving RW culture for texts on the Net just now. Its scope and reach and, most important, sophistication are far beyond what anyone imagined at the Internet’s birth. Through technologies not even conceived of when this system began, this RW culture for texts has built an ecology of content and an economy of reputation. There is a system now that makes an extraordinary range of ini- tially unfiltered content understandable, and that helps the reader recognize what he should trust, and what he should question. We can describe this system in three layers. The first is the writ— ing itself. This has evolved through two different lives. The first of these is obscure to many; the second is the ubiquitous “blog.” The first was something called Usenet. In 1979, two computer scientists at Duke, Tom Truscott and Jim Ellis, invented a distrib— uted messaging system that enabled messages to be passed cheaply among thousands of computers worldwide. This was Usenet. Some« times these messages were announcementy; sometimes they were simply informational. But soon they became the location of increas— ingly interactive RW culture. As individuals realized they could simply hit a single button and post a comment or reply to thousands of computers worldwide, the temptation to speak could not be resisted. Usenet grew quickly, and passion around it grew quickly as well. In 1994, a couple oflawyers changed all this. The firm Canter 6t 58 REMIX Siegel posted the first cross-group commercial message—aka spam—advertising its services. Thousands responded in anger, flaming the lawyers to get them to stop. But many others quickly copied Canter & Siegel. Other such scum quickly followed. Usenet became less and less a place where conversation could happen, and more and more a ghetto for gambling ads and other such scams (see also your e—mail in—box).5 Just about the time that Usenet was fading, the World Wide Web was rising. The Web’s inventor, Tim Bernervaee, was keen that the Web be a RW medium—what Benkler calls “the writ- able Web."6 He pushed people developing tools to implement Web protocols to design their tools in a way that would encourage both reading and writing.7 At first, this effort failed. The real drive for the Web, its developers thought, would be businesses and other organizations that would want to publish content to the world. RO, not RW. But as tools to simplify HTML coding matured, Berners-Lee’s idea of a RW Internet became a reality. Web—logs, or blogs, soon started to proliferate at an explosive rate. In March 2003, the best- known service for tracking blogs, Technorati, found just 100,000 blogs. Six months later, that number had grown to 1 million. A year later, more than 4 million were listed.8 Today there are more than 100 million blogs worldwide, with more than 15 added in the time it took you to read this sentence. According to Technorati, Japa- nese is now the number one blogging language. And Farsi has just entered the top ten.9 When blogs began (and you can still see these early blogs using Brewster Kahle’s “Wayback machine” at archiveorg), while they expressed RW creativity (since the norm for this form of writing encouraged heavy linking and citation), their RW character was ....._______.,.___ my.“ .mwu...‘ RW. REVIVED 5‘) limited. Many were little more than a public diary: people (and some very weird people) posting their thoughts into an apparently empty void. Most were commentary on other public events. So the writing itselfwas RW, but the writing was experienced by an audi- ence as RO. Soon, however, in what Benkler calls the “second critical inno- vation of the writable Web,”o bloggers added a way for their audi- ence to talk back. Comments became an integral part of blogging. Some of these comments were insightful, some were silly, some were designed simply to incite. But by adding a way to talk back, blogs changed how they were read. This was the first layer of the Net’s RW culture for text. Alone, however, this layer would be worth very little. How could you find anything of interest in this vast, undifferentiated sea of content? If you knew someone you trusted, maybe you'd read her blog. But why would you waste your time reading some random person's thoughts about anything at all? The next two layers helped solve this problem. The first added some order to the blogosphere. It did so by adding not a taxonomy but, as Thomas Vander Wal puts it, a “folksonomy to this RW culture.”11 Tags and ranking systems, such as del.icio.us, Reddit, and Digg, enabled readers of a blog or news article to mark it for others to find or ignore. These marks added meaning to the post or story. They would help it get organized among the millions of others that were out there. Together these tools added a metalayer to the blogosphere, by providing, as Wired cofounder Kevin Kelly puts it, “a public annotation—dike a keyword or category name that you hang on a file, Web page or picture."12 And as readers explore the Web, users leave marks that help others understand or find the same stuff. 61] REMIX So, for example, ifyou read an article about Barack Obama, you can tag it with a short description: “Obama” or “Obama_environ~ ment.” As millions of readers do the same, the system of tagging begins to impose order on the stuff taggedieven though no one has drafted a table oftags, and no one imposes any rules about the tags. You could just as well tag the Obama article “petunias,” and some few petunia lovers will be disappointed as they follow the sign to this nonpetunia site. But as more and more users push the arrows in other ways, more and more follow more faithful taggers. Tagging thus added a layer of meaning to RW content. The more tags, the more useful and significant they become. Impor— tantly, this significance is created directly by the viewers or consum- ers of that culture—not by advertisers, or by any other intentional efforts at commercial promotion. This reputation and word—of- mouth technology create a competing set of meanings that get asso— ciated with any content. The tools become “powerful forces that marketers must harness," though as Don Tapscott and Anthony Williams point out, this is a force that can “just as easily spin out of control in unpredictable ways.”13 As they add meaning to content, these tools also enable col- laboration. Significance and salience are a selfvconscious commu- nity activity.” Sites such as del.icio.us reinforce this community power by allowing users to share bookmarks, enabling “links [to] become...the basis for learning new things and making connec- tions to new people."15 They also change the relative power of the reader. As the reader “writes” with tags or votes, the importance of the original writing changes. A major national newspaper could have the highest-paid technology writer in the world. But what happens to that writer when it turns out that the columns read by more, and recommended by most, are written by eighteen-year—old RW. REVIVEI] 6] bloggers? The New York Times used to have the power to say who was the most significant. A much more democratic force does that now. The third layer of this RW culture for text is much less direct. These are tools that try to measure the significance of a conversa- tion by counting the links that others make to the conversations. Technorati is the leader in this area so far. Its (ro)bots crawl the world ofblogs, counting who links to whom or what. The company then publishes up—to-the-minute rankings and link reports, so you can post a blog entry and, minutes later, begin watching everyone who links back to that entry. Technorati says it updates its index every ten minutes.16 With over 100 million blogs indexed, that’s a very fast update. Indices like this show the revealed preferences of the blogo- sphere. In almost real time, we can see who is wielding influence. And as the space matures, most interestingly, we can see that the influence of blogs is increasingly outstripping mainstream media. In the Q4 report for 2006, Technorati reported that in the 51—100 range of most popular sites on the Web, 25 percent were blogs.17 Ten years before, 0 percent of nonprofessional content would have been among the most popular of any popular media. These three layers, then, work together. There would be noth- ing without the content. But there would be too much to be useful were there only the content. So, in addition to content, content about content—tags, and recommendations—combined with tools to measure the influence of content. The whole becomes an ecosystem of reputation. Those trying to interact with culture now recognize this spa...
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