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.)

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  • http://striphas.blogspot.com Ted Striphas

    What’s also new (and timely) is your broader defense of the rule of law. This aspect of the book shouldn’t be underestimated, living as many of us do under conditions some have described as a “state of exception” in which legal rights and principles can be suspended essentially by decree.

  • http://www.copyrightalliance.org Patrick

    Of course, the Dick Nixon press conference you quote was when he lost in the California gubernatorial race in ’62, two years after losing to Kennedy for president. He had every intent of coming back, and he did, running for president (and winning) in both 1968 and 1972. So should we look for another Free Culture book in 6 years?

  • Martín

    I’m on page 120 of the book and loving it so far. It’s a great present for some of the industry lobbyists that are trying to maintain their outdated business model by pushing a completely unbalanced amendment to the Chilean Copyright Law.

    Martín (from Chile).

  • Sam I Am

    To Martin from Chile,
    You’ve misunderstood and parroted some of the most egregious, empty dogma of the proponents of filesharing copyrighted entertainment.

    Industry lobbyists would love the miracle of digital distribution to pan out as a viable business model, indeed, there are already many successful DL sites based upon the equitable behavior of consumers who see the value in retaining the essence of the REAL business model; that is, of simply taking whatever you wish that is for sale and then paying for whatever you take.

    Formats and distribution methods will eternally evolve but I’d be very surprised if this most fundamental tenet of fair dealing and the most basic model for business ever goes out of style.

  • Martín

    Sam, maybe that is how it works in the U.S., but not in many other parts of the world, and especially in Latin America. If access to digital content is instantaneous and ubiquitous, it is an insult for people here to have to wait for the industry to get their act together so that we can legally access that which is available in the “first world”. I lived in the U.S., and paid money for downloadable content from iTunes, Amazon, Netflix, Hulu, etc… NONE of those services are available in Latin America, even though there is no implementation barrier besides transaction and search costs for licensing.

    Instead of getting its act together, the industry through the Society of Author’s Rights, pushes to create a blanket charge so that all ISPs pay for all the copyright infringement that supposedly occurs in their networks, increasing the already huge amounts of money we pay for really bad and slow broadband. This is more extreme than the DMCA provisions. Not only that, but they refuse to allow the creation of a compulsory license for adaptation of literary works into audiobooks for blind people. IMO this a fair and balanced proposal, but their intent is not to create a balanced law. They want to replicate the american Copyright Act as much as they can, and that I think will be a lost opportunity to create a piece of legislation that reflects the current paradigm change.

    In the end, I just think that the industry is reluctant to let go of their role as gatekeepers of content creation and distribution. In a RW culture, there is no need for gatekeepers, because we can all create and distribute content cheaply through digital technologies. The industry’s business model was based on control, and we know it doesn’t work anymore. I cannot agree to anything that wants to maintain the status quo.

  • Sam I Am

    Martin, by all means change the status quo, but do it legally or deal with law enforcement and get whatever you get. This is not nearly as complicated as you’d like to make it appear. Your content is yours. Do with it as you wish. Other peoples content is theirs, and you have no rights except those you license properly with certain limited exceptions. The industry has no control over anything you create yourself, nor have they ever indicated they want to control your product. Their product, however, is an entirely different matter, legally and ethically. The absence of something in your marketplace is no justification to steal it elsewhere, whether you are insulted or not. Be insulted and be legal or face well established consequences. The world becomes a better place when we are all held a bit more accountable to our actions.

  • oliver

    This reminds me of Fantasy Records suing John Fogerty for sounding too much like Creedence Clearwater. Anyway, derivative-ness is more or less a non-issue for naive readers. The book isn’t for a fanbase or subscribers. Plus LL has been sharing his ongoing thoughts on this subject practically in real time with the whole Worldwide Web. It’s like we’ve all been living with him and listening to him practice in the next room for a decade. It’s a wonder the book surprises anybody