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Features: In Defense of Larry Lessig
Posted by Ernest Miller on Saturday, May 25 @ 09:37:08 EDT Copyright
Not that Lessig needs any defense, but I thought I would write a response to the recent article by William F. Adkinson, Jr., Senior Policy Counsel at the Progress & Freedom Foundation, in the American Spectator. The article is entitled (Creativity & Control, Part 2) [via Doc Searls] and is a critique of Larry Lessig's arguments in The Future of Ideas. Mr. Adkinson is also co-author of a more detailed look at copyright issues (The Debate Over Digital Online Content: Understanding the Issues [PDF]).

My counter-critique of Adkinson below ...

Adkinson first takes issue with Lessig's claim that overly strong copyright threatens creativity. Indeed, Adkinson asserts Lessig's theory "is difficult to square with basic facts about the Information Age." Adkinson notes that Lessig apparently agrees with the idea that copyright can encourage creativity, and asks, if that is the case, why "Lessig is so concerned about the future of creativity?" But it is Adkinson's characterization of Lessig's argument that is difficult to square with basic facts. For Adkinson's question to be an intelligible critique of Lessig, it must be that Lessig's position is that copyright should be abandoned. This, of course, is not the case. Lessig's argument is not that copyright should be abandoned, but that there needs to be a balance. Too much copyright can harm innovation just as too little copyright can harm innovation as well. Given that copyright has continuously expanded over the past 100 years, is it unreasonable that Lessig believes the balance has shifted too far in favor of copyright holders? Adkinson would seem to be saying so.

Adkinson's next rhetorical assault is on the making of copies. He dismisses Lessig's arguments in favor of "rip, mix [and] burn[ing]" music as "highly derivative" and suggests that copying has no value. Indeed, Adkinson claims that "'rip' and 'burn' are most commonly associated with Internet piracy." This, of course, is one of the biggest problems with our current understanding of copyright, the idea that making copies is central to copyright. As Joan Feigenbaum and I have written, copying was not and does not have to be part of copyright (Taking the Copy Out of Copyright [PDF]). To make a long argument short, why is copying wrong? Why is ripping, mixing and burning a bad thing? I can understand the argument against distributing copies to strangers on the Internet, but why is making copies for personal use wrong? Moreover, it seems that Adkinson has a very limited conception of the engine of creativity. He does not consider the argument that the wellspring of creativity is not simply the ability to transform existing works, but the ability for individuals to make use of creative works in their own lives in the manner they choose. To become a good author, one should read a lot of books. To become a good musician, one should listen to a lot of music. If I can listen to more music while driving (because I was able to rip mix and burn), this is a good thing. To the extent that people can use copyrighted works as they see fit, creativity will bloom.

Adkinson does toss a bone to transformative artists by acknowledging, perhaps, that some fair uses "be expanded incrementally." At the same time, however, he denigrates simple copying. Why? What is wrong with copying for personal use? Adkinson merely assumes it is wrong.

Next, Adkinson gives us a classic example of the "analog fallacy" by repeating the scare-mantra of perfect digital copies of recently released movies. Heck, I could write an entire essay on why his argument is seriously flawed. Heck, I already did (The LawMeme Guide to Spider-Man and Star Wars Bootlegs). Seems to me that the problem here isn't copying, but distribution.

Lessig is famous for calling the MPAA and RIAA dinosaurs attempting to stifle innovation. He is correct. Lessig has called for a halt to the lawsuits that destroyed Napster. Here I disagree; I think that the Napster decision was seriously flawed, but mostly correct. However, I don't understand Adkinson's argument that, quoting from Columbia Law Professor Jane Ginsburg, big media is "attempt[ing] to tame a new technology into copyright friendliness, rather than ... suppress it altogether." Of course, Hollywood isn't trying to suppress technology all together. But what Ginsburg calls "tame" I call "beat into submission and enslave."

Next, Adkinson gets economical, dispensing with Lessig's concern about monopoly, and arguing that there is plenty of competition among the "seven major movie studios and five major record companies." However, Adkison's analysis is seriously flawed and Posner, whom he quotes, is simply wrong. One definition of monopoly power is the ability to price above marginal cost. If copyrighted works couldn't be sold above marginal cost (which for information is nearly zero), what is the point of copyright? Clearly, then, there is some monopoly power. One might also wonder why the courts have developed a doctrine of "copyright misuse" that is based on antitrust if copyrights don't confer monopoly power. While it is true that a variety of music and movies vie for the consumer's attention, the problems of copyright monopoly power are often expressed in other ways. For example, as Prof. Yochai Benkler has pointed out, excessive copyright leads to commercialization, homogenization and concentration (Intellectual Property and the Organization of Information Production [PDF]). Prof. Benkler raises some serious concerns regarding excessive copyright.

In any case, Lessig believes that the market is flawed and that non-market forces must remedy some of these flaws. Of course, Lessig is well aware that non-market forces (such as government) are flawed as well. Adkinson admits of no flaws in the market and is thus baffled that Lessig would choose to support a flawed non-market force. Given this, Adkinson comes to the astounding conclusion that the problem is determing an optimal mix of market and non-market controls. Guess Lessig hadn't thought of that (though it seems to me that is one of the consistent themes of his work).

Somewhat more reasonably, Adkinson attacks some of Lessig's specific proposals for copyright reform. For example, Adkinson disagrees with Lessig's call for a maximum of 75 years of copyright. Adkinson apparently sees no difference between a copyright term of 75 years and 100 years. I agree with him, but that is because I think 75 years is also ridiculously long (what businesses plan that far in advance?). Adkinson asserts that these extra 25 years won't interfere with creativity or provide power over consumers. If that is the case, why does Hollywood want the extra years? Moreover, it is clear that Adkinson has not read Benkler.

Like Adkinson, I agree that Lessig's compulsory licensing scheme for online music is flawed. My proposal would be for non-discrimanatory licensing terms (for all copyrighted works, by the way). Music companies would be free to license on any terms they desired, so long as they offered the same terms to all comers. This would elminate Adkinson's concerns about the lengthy regulatory proceedings and government's inflexibility. Music companies would be free to experiment with different forms of distribution and such experimentation would be multiplied because many distributors could participate in the experiment.

Lastly, Adkison disagrees with Lessig's other proposal to eliminate DMCA protections for protection devices that hinder fair use. I also disagree - I think we should just get rid of the DMCA. Adkinson fears that technological protection will not work without the DMCA. However, no one is stopping Hollywood from developing effective protection measures. In any case, again, why the focus on copying rather than distribution? Rather than attempt to stop copying, why not focus on mechanisms to prevent illicit distribution? Rather than create radar guns to find and ticket reckless speeders, Adkinson would mandate that no car could ever speed.

Adkinson is also surprisingly enthusiastic about the potentials of DRM. The article wasn't published April 1st, so his arguments must be serious, though I had to double check the date when I read that "there is every reason to expect that content providers would use technological protection and digital rights management ... to benefit consumers." If that is the case, where are the devices? For example, Hollywood created the original Circuit-City sponsored DiVX. Apparently, consumers didn't see the benefit (bad consumers, bad). Consumers also failed to see the benefit of DRM protected Digital Audio Tape. One would think that if there were real benefits to consumers they might have noticed them by now. Perhaps Adkinson could provide an example where two competing technologies, one with DRM and the other without resulted in the widespread adoption of the DRM-enabled technology.

Adkinson concludes by calling for a market based on "clear, enforceable property rights." Hear, hear. However, that would entail getting rid of the emphasis on "illicit" copying as opposed to illicit distribution.

 
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Related Links
· William F. Adkinson, Jr.
· Progress & Freedom Foundation
· American Spectator
· Creativity & Control, Part 2
· Doc Searls
· Larry Lessig
· The Future of Ideas
· The Debate Over Digital Online Content: Understanding the Issues
· Joan Feigenbaum
· Taking the Copy Out of Copyright
· The LawMeme Guide to Spider-Man and Star Wars Bootlegs
· MPAA
· RIAA
· Jane Ginsburg
· Yochai Benkler
· Intellectual Property and the Organization of Information Production
· DiVX
· Digital Audio Tape
· More about Copyright
· News by Ernest Miller


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"User's Login" | Login/Create an Account | 17 comments
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Re: In Defense of Larry Lessig (Score: 2)
by tompoe on Saturday, May 25 @ 16:10:37 EDT
(User Info | Send a Message) http://www.studioforrecording.org/
Hi: What is this? "there is plenty of competition among the "seven major movie studios and five major record companies." " I think I need to remind all those in the room, that noone gives two hoots about seven major movie studios and five major record companies. What is at stake here, is the individual printing press, the general purpose computer, if-you-will. The technology exists to provide you and I the opportunity to explore video [movies] and recording [music] without any dependence on the seven major movie studios and five major record companies. They're history! Gone! And not missed! To give these people the power by acknowledging that they deserve to be a part of the digital age by "grandfathering" them into the system without their having to earn their way, is just plain outrageous! Open Studios says, musicians and artists, come, FREE services. Put your works into the Public Domain. Compete on the Internet. We'll teach you marketing strategies for the 21st Century, and if others want to charge for those same services, have at it. Bottom line, is, without a Public Domain, without the opportunity to use the Digital Information Age technology, only those seven major movie studios and five major record companies will benefit. Everyone else in the world community will lose.
Thanks,
Tom Poe
Reno, NV
http://www.studioforrecording.org/
http://www.ibiblio.org/studioforrecording/
http://renotahoe.pm.org/


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Re: In Defense of Larry Lessig (Score: 2)
by tompoe on Saturday, May 25 @ 16:25:27 EDT
(User Info | Send a Message) http://www.studioforrecording.org/
Hi: Just went to read Adtkinson's article. Got as far as paragraph 2, where he discounts anything Lessig says, because the premise is all wrong. Lessig forgets, according to this guy, that we're experiencing one of the most miraculous explosions called the Information Age. Geeeez. This is absolute crap coming out of our esteemed Yale "professional". What's at stake is that Hollywood is assaulting our very concept of copyright. Hollywood is leading the charge that Lehman set up in the mid-nineties, in the White Paper, which concludes that there is one small group of individuals that will control all information access worldwide. Guess who "fronts" this small group? Hollywood is/has succeeded in severely harming the copyright/Public Domain balance. Behind all of this nonsense, is the "taking" of the Information Age, and turning it inside out, at the expense of you and I. Lessig says, slow down, let's work to replenish the Public Domain, let's strike a balance, and this guy says, no, let's destroy the computer, and replace it with seven major movie studios and five major record companies, and life will be good.
Thanks,
Tom Poe
Reno, NV
http://www.studioforrecording.org/
http://www.ibiblio.org/studioforrecording/
http://renotahoe.pm.org/


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The focus on copies is about control (Score: 2, Insighful)
by potatohead (lawmeme@NO-MAPSopengeek.org) on Sunday, May 26 @ 01:13:56 EDT
(User Info | Send a Message) http://
Posted this on the earlier spiderman thread, but thought perhaps it is worth one more round here. ( you can read the other under the title "I propose the piracy thing is a ruse."

Basically, if you and I cannot make any unauthorized copies, then all uses of the media go through the distributors. This level of control gives them three things they *want* very much going forward into the digitial age.

1. They can utilize pay per view and subscription models. WIth these, the larger the catalog, the more potential dollars they make over time. --I am talking about very long periods of time.

2. They stop the consumption problem. Right now we are busy buying media both new and old that we find interesting because the two primary digital formats promise long life and high fidelity. Once the boom in old media purchases is over, they will be left with the blockbuster profits they generate with new media productions. Over the next 10 years they face quite a revenue shortage with the current media and distribution models. Look for format changes that favor them and not us. (DIVX style, or at the least copy restricted media formats worse than what we have now.) You can bet that they will push the heck out of the blue laser DVD media and correct the "mistakes" made with existing DVD media.

3. They eliminate potential competition. Anyone wanting to distribute anything will have to go through an authorized distributor. No more "Blair Witch Project" releases stealing revenue from the first-run hits. A secondary effect here is about control of speech in general. Harder to make artistic statements without distribution. All they need to is say "the market is not ready for that!" and you are done. Maybe they buy it from you, or knock it off to marginalize your work and its all over.

Personally I have little sorrow for them. I am sure profits are important, but the benefit of the emerging distributed creative culture is more important to me. As others learn, they will agree. This is a large part of why this stuff does not get a lot of mainstream press.

Maybe the above is a little alarmist, but I can find few other sane motives that explain their actions of late.....


[ Reply to This ]

Re: In Defense of Larry Lessig (Score: 1, Insighful)
by Anonymous (Name Withheld on Advice of Counsel) on Sunday, May 26 @ 06:30:23 EDT
Guest reader here...

I think one of the points missed here is Adkinson's clear but rather bizarre notion of balance:

"In my view, the expansion of creative content on the Internet will be best served through primary reliance on markets. The high rate of technological and business transformation makes private control especially desirable. Government has a key role in defining and enforcing the property rights (especially copyrights) involved, but should let competing private firms design and test business models, and set prices."

In other words, the Law should be relied upon to protect the rights of the copyright holder, and the Market should be relied upon to protect the rights of the consumer. Alternately, the Law determines one boundary and the Market determines the other, so we end with the Law fighting the Market.

It seems to me a better solution (and the one proposed by Lessig and opposed by Adkinson) is that the Law determines both boundaries and the Market finds the optimal position between those bounds.

David Rea
Greenwich, CT


[ Reply to This ]

Re: In Defense of Larry Lessig (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Sunday, May 26 @ 09:29:35 EDT
1. Packet switching was designed to be uncontrollable - circa 1964. [RAND Contract No:AF 49 (638)-700] It still is.
2. Jack Valenti ought be more forthcoming about what he knew about the death of Aldo Moro, in 1978. And when. Rather than the death of invention. Which he clearly abets.
3. Lessig, quite conservatively, seeks grounds for agreement on a regimen that might
keep varying trades in work, for a little while yet.
It is not a vain hope. German 'pure' beer laws appear to have held since the 14th C.
But only in Germany. And not necessarily everywhere, even there.






[ Reply to This ]

Re: In Defense of Larry Lessig (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Sunday, May 26 @ 11:34:48 EDT
From darkphotn @t yahoo (dot) com:

I agree with the article, but wish to point something out.

> One definition of monopoly power is the ability
> to price above marginal cost. If copyrighted works
> couldn't be sold above marginal cost (which for
> information is nearly zero), what is the point of
> copyright? Clearly, then, there is some monopoly power.

Imagine that the cost to produce a certain movie is $100 million. Imagine that 10 million people will see it. The company must gross $10 per person in order to break even, not $0 per person to break even. Zero marginal costs does not translate to zero total costs.

-DarkPhoton Ashatar


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Re: In Defense of Larry Lessig (Score: 1)
by Brootal on Sunday, May 26 @ 11:39:46 EDT
(User Info | Send a Message) http://
A couple of cursory thoughts:

"To make a long argument short, why is copying wrong? Why is ripping, mixing and burning a bad thing? I can understand the argument against distributing copies to strangers on the Internet, but why is making copies for personal use wrong?"

Nothing per se is wrong with copying--as long as the material being copied was legitimately obtained by the would-be copier. But what of the person who borrows (clearly, "fair use") such material and makes a copy of--no, clones--the material before returning it to her friend? Neither person has "distributed" material in violation of copyright, but the "copying" of the material violates copyright.

What of copyrighted material legitimately "rented" and subsequently copied but not distributed. (Does anyone really know somebody who made legitimate "fair use" of DeCSS? Really?!?)

"If I can listen to more music while driving (because I was able to rip mix and burn), this is a good thing. To the extent that people can use copyrighted works as they see fit, creativity will bloom."

Even assuming your second statement, it is hardly clear that restricting the activity described in the first sentence significantly restricts "the extent that people can use copyrighted works." There are far more insidious threats to the musical culture of the country than the inability to burn mix CDs.

At the risk of being pegged a Posner-pragmatist, I argue that one needs to make a cost/benefit (I cringe at the inferences just made) analysis of copying. To focus on a copy/distribution distinction is to misunderstand the problem.

Verily,
J Cole


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Re: In Defense of Larry Lessig (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Sunday, May 26 @ 11:52:36 EDT
The flaw in Garrison's article that concerns me is that a patent by a company(Red Hat) is equivalent to a copyright like the GNU that is held (i may be mistaken) by hte FSF. the goals and aims of a corporation are fundamentally different than the goals of a foundation, society, association or any other civic, community or professional orgtanization. In fact those differences are defined by law for tax purposes. A business exists first and foremost to make money. The charters for other types of organisations by definition may not include that as their primary goal or as a goal at all. That is not to say that one is better or more pure then the other, just that they are different. Consequently ascribing the ensuing benefits from the copyright of the GNU to the patents being applied for by Red Hat doesn't fly.
One final point. The analogy about radar guns and speeders doesn't work for me. i have often thought it the height of lunacy that we make cars capable of greatly exceeding the maximum legal speed limit. the tecnology to limit them is simple and the need for greater speed is not apparent for the average driver.


[ Reply to This ]

  • Incorrect. by Anonymous (Name Withheld on Advice of Counsel) on Sunday, May 26 @ 16:55:45 EDT
Re: In Defense of Larry Lessig (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Sunday, May 26 @ 14:22:45 EDT
Not a comment, but rather a question. As I've been taught, "copyright" was a "shorthand" way of referring to the longer fragment,"right to copy for profit". Yes or no?
One of the things that seems to be agreed to is that the creators of content have a right to profit from their abilities. However, what is not clear is to what extent one can distinguish between the line that separates a deliberate taking of profits (piracy) from behaviors that might limit the legitimate profit taken by the copyright holder (fair use). One can take evidence to support the profit loss in the case of piracy. One can only speculate about profit loss in other cases.
Last time I served on a jury, I heard quite a bit in the way of instructions regarding speculation. It wasn't allowed.


[ Reply to This ]

Re: In Defense of Larry Lessig (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Sunday, May 26 @ 19:46:30 EDT
Disclaimer: I am not a user of Napster, nor of other file-sharing software. I am a fifty-year-old conservative mathematician (Ph.D., MIT 1978), quite mature enough to know what nonsense is when I hear it. I am outraged by the illegality of current copyright law. The Constitution (the Supreme Law of the Land in the US) demands that copyright have limited term. Atkinson attempts to defend the indefensible, and Lessig does not call him on it. Does the DMCA demand that "technical means of protection" expire upon expiration of the underlying copyright? If not, then the DMCA is unconstitutional on its face, and as a mature mathematician, I am quite willing to say that any argument to the contrary is specious. Current copyright law violates the Constitutional requirement of limited term in at least three ways. Mathematically: If Congress is free to extend copyright term at will, then by definition, that term is not limited. That is my professional opinion, from a member of just that profession concerned with the definition and meaning of limits. Operationally: Nor is there any test that I can perform which distinguishes the current copyright regime from one in which copyright term is unlimited. No copyright has expired during my adult lifetime, nor can I expect any to expire during the actuarially-expected remainder thereof. The present copyright regime is operationally indistinguishable from one with unlimited term. Functionally: Copyright term exceeds the lifetime of the physical media on which most works are stored. Magnetic media are not reliable past 10-15 years. Optical media are not reliable past 50 (due to oxidation of the aluminum substrate). Copyright term greatly exceeds both of these. If works cannot physically survive until the expiration of their copyrights, then the term of that copyright is in fact infinite. It is physically impossible that they be legally copied, breaking the underlying contract at the heart of copyright: monopoly now, in exchange for access later.


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