October 31, 2008  ·  Lessig

Robert Greenwald and friends put together this extraordinary video for the extraordinary REMIX book launch party in San Francisco, obviously with the intent to demonstrate just how remix can be an extraordinary distortion, because obviously, I don’t use the word “extraordinary” so frequently.

October 29, 2008  ·  Lessig

As many have, I’ve been eager to understand the terms of the settlement in the AAP/Authors Guild v. Google case (Google Summary, Actual Settlement). After spending some time studying it, here are my thoughts. (4TR: I was not part of any of these settlement negotiations so all this was news to me).

IMHO, this is a good deal that could be the basis for something really fantastic. The Authors Guild and the American Association of Publishers have settled for terms that will assure greater access to these materials than would have been the case had Google prevailed. Under the agreement, 20% of any work not opting out will be available freely; full access can be purchased for a fee. That secures more access for this class of out-of-print but presumptively-under-copyright works than Google was initially proposing. And as this constitutes up to 75% of the books in the libraries to be scanned, that is hugely important and good. That’s good news for Google, and the AAP/Authors Guild, and the public. (My favorable views about the AAP at least are not, of course, reciprocated.)

It is also good news that the settlement does not presume to answer the question about what “fair use” would have allowed. The AAP/AG are clear that they still don’t agree with Google’s views about “fair use.” But this agreement gives the public (and authors) more than what “fair use” would have permitted. That leaves “fair use” as it is, and gives the spread of knowledge more that it would have had.

The hard issue here will be in the details (surprise, surprise). The agreement calls for the creation of a registry to be operated by a nonprofit corporation. That corporation will be governed by a board comprised of publishers and “authors” (meaning authors participating in the law suit). That corporation will administer the payments to authors and publishers that flow from the agreement. It will also administer a registry that will make it easier for works to be identified, and owners located.

The hard question for the registry is how far they will go to support the range of business models that authors and publishers might have. E.g., Yale Press “Books Unbound” and Bloomsbury Academic both have Creative Commons licensed authors. Will the registry enable that fact to be recognized? Indeed, though the comment was made by someone from the plaintiffs’ side that it would be “perverse” for authors to choose free licensing, it is perfectly plausible that an author would choose to make his or her work available freely electronically, but contract with one commercial publisher to deal with selling the physical book, or licensing rights commercially. That, again, is the Bloomsbury Academic business model. Ideally, this non-profit should encourage the widest range of rights-respecting business models. One clear signal about what kind of organization this is will come from this.

But key to the good in the agreement is that we don’t have to trust the nonprofit to do good here. Google has committed both to making the data it can control (not private data about telephone numbers and contact info, but public data about copyright registration, terms, etc.) nonexclusively available, and more importantly, downloadable by anyone who wants to build a competing and complementary database. It has also reserved important safe-harbors for its incredibly valuable public domain collection (which includes books people get free access to, and can download for free).

Here, too, however, there is an important challenge for Google. It has provided important value by making available works that have no rights attached to it. But it should do more to make available works that have some rights attached to it. Critical for evaluating whether the long term interest of Google is GOOd or GOOey, Google needs to build into its architecture assets that are licensed freely, or under noncommercial terms, to complement the assets that it claims are free for “noncommercial” download (namely, the public domain works it has). Acting to clearly support the non-proprietary movement as well as the proprietary is an important way for it to show that it stands in the middle, and that it, with the AAP/Authors Guild, have now done some real good.

The biggest loser in this whole battle is the Orphan Works legislation. If anyone needed evidence to demonstrate that it is WAY TOO EARLY for Congress to be passing massive new bureaucratic overlays to copyright to deal with the important problem of “orphan works,” this is the evidence. Let’s let this private alternative develop, while Congress puts away its billion-factor balancing tests for regulating access to “orphan works.” For earlier rants against the Orphan Works bill, see:

Copyright Policy: Orphan Works Reform

Internet Law: 2.5 done (round II on Orphans)

And here’s a video I did years ago against the original Orphan Works proposals.

And a video I did long ago about whether Google’s use was “fair use.”

October 29, 2008  ·  Lessig

Proposition 8 is the CA initiative to amend the CA constitution to ban same-sex marriage. This is far from my usual field, but it is an issue I feel strongly about. Click for 8 minutes of a diversion on 8.

October 25, 2008  ·  Lessig

Spencer asks for a review of his review. I’ll reply to one part: the suggestion that the work is “a derivative essay that rehashes a lot of his older work.” That would be true if the book were, as he describes it, about “curtailing creativity, innovation, and even some of our most basic freedoms.” But that’s Free Culture, not REMIX. As I describe in the preface to this REMIX:

“In the past, I’ve tried to advance this view for peace by focusing on the costs of this war to innovation, to creativity, and, ultimately, to freedom. My aim in The Future of Ideas was to defend industries that never get born for fear of the insane liability that the current regime of copyright imposes. My subject in Free Culture was the forms of creative expression and freedom that get trampled by the extremism of defending a regime of copyright built for a radically different technological age.

But I finished Free Culture just as my first child was born. And in the four years since, my focus, or fears, about this war have changed. I don’t doubt the concerns I had about innovation, creativity, and freedom. But they don’t keep me awake anymore. Now I worry about the effect this war is having upon our kids. What is this war doing to them? Whom is it making them? How is it changing how they think about normal, right-thinking behavior? What does it mean to a society when a whole generation is raised as criminals?”

This wasn’t a focus in Free Culture. It was a passing thought. It is now the frame for REMIX, the motivation for trying to place in the center the good that this net might offer, as a bribe to get policy makers (aka, citizens) to stop this hopeless war, and sue for peace.

That’s one focus (and new) at the core of the book. The second is the idea of “remix.” REMIX, unlike Free Culture, is focused on a particular kind of creativity. I hadn’t recognized, or even thought carefully, about this creativity when I wrote Free Culture. But the Sousa quote I’ve referred to again and again (railing against “talking machines,” he observes “we will not have a vocal cord left. The vocal cords will be eliminated by a process of evolution was was the tail of man when he came from the ape.”) got me to think about the importance of “democratic creativity” — meaning a kind of creativity that ordinary people engage just like the professionals. This focus on the amateur vs. the professional of course is a theme of others — Benkler, most importantly. But I liked the way it explained something about how creativity was different in he 20th century from every other century, including the 21st.

The third idea in REMIX is the one Spencer’s review focuses on — the emergence of what I call the “hybrid” — and here Spencer has nice words.

Although this section borrows heavily from the work of others, including The Long Tail by Chris Anderson and Wikinomics by Don Tapscott and Anthony Williams, Lessig breaks new ground.

That passage made me happy. Because I was inspired by Chris and Don/Anthony (and Benkler). But I am happy that even in an otherwise critical review, it’s clear that this part “breaks new ground.”

These are three ideas, or frames, that move REMIX beyond Free Culture. Different points, not “rehashing” of old. Is it “derivative”? Well, of course, it is the thought that I currently have about a subject I’ve been working on for a decade, deriving from thoughts I had before. But I had thought — I had hoped — the new added something to the old. These three things frame the new.

Finally, Spencer criticizes my 35 pages of prescription at the end.

Most annoying, he devotes only the last 35 pages of the book to his reform plan, and some of those ideas are not even that new.

Better, he suggests, would have been if I had “used Remix to tell the story of his Creative Commons.”

I’ll leave it to others to tell the story of Creative Commons. Understanding requires a less self-interested source. But I’m not sure I get what’s “annoying” about the 35 pages. I’m not sure how “new” the suggestions are. I’m more concerned with whether they’re true. Spencer seems upset that he has heard versions of them before (because the proposals I advance in fact are not the proposals I had advanced before). I guess I’m not convinced of the fairness of that annoyance. This is a second book on the culture issues. The things I believed in book one I still believe in book two. Sure, it would have been more interesting had I come to believe completely different things. (“Wait a minute — Valenti is right. What was I thinking!”) But I didn’t. I still think the copyright system regulates too much. I still believe social resources should be devoted differently. I believe even more now in the “humility” that law needs.

Though there are things that remain the same, I wrote Remix because the work of many others had helped me see important parts of this debate differently. Most importantly, the good, the optimistic, the promising parts. Remix and hybrids: they give us yet another reason to end this war.

But enough. Spencer’s a good soul. He’s written well for Businessweek, and while I’m just midway through his book, Creative Capital, I’m sure I’ll have nicer things to say about his than he about mine. I’ve said this book was essentially finished a year ago. I’ve moved on to different work. So “you won’t have [Free Culture Lessig] to kick around any more, gentlemen, because this is my last [free culture book].” (And see, if I were 15, and had any real talent, I would have taken Nixon’s press conference, superimposed my face on Nixon’s, added some Gil or NIN music, or whatever.)

October 24, 2008  ·  Lessig

It was a tough morning swallowing Spencer’s review. My reaction was — “really, that’s what you see in the book?!” None of the key points that made it worth my writing the book were visible to him (or at least, as evinced by the review). And that, frankly, was astonishing, and astonishingly depressing.

But it is the end of the day (here in Hong Kong), and with it comes a review by Kathleen Fitzpatrick, that is actually about the stuff in this book that is what the book’s about, and new (and of course, as I think, important). What the book “is” of course is hard to say. But her review is actually a review of the book I thought I wrote.

Most amazing fact of the day however: I posted a Flickr image of the cover of the book to distract from the Spencer review. I didn’t know the photographer, and certainly didn’t know where she was from. I’m not even quite sure how I even came across the image. But after my talk here in Hong Kong, she came up to me. She had seen the image on my blog.

October 24, 2008  ·  Lessig

2963844219_3cc412416c.jpg

by laihiu at Flickr

Creative Commons License

Spence Ante didn’t like Remix.

But Remix is Lessig’s weakest effort to date, a derivative essay that rehashes a lot of his older work. Like Martin Scorsese doing another mobster flick, Lessig seems uninspired, groping for a fresh take on familiar themes. Most annoying, he devotes only the last 35 pages of the book to his reform plan, and some of those ideas are not even that new.

But he does give me a chance to share this beautiful picture from laihiu.