November 12, 2010  ·  Lessig  · Reblogged from  Huffington Post

David Wallace-Wells has a very long review of the great Lewis Hyde’s new book, Common as Air, at The Nation. The point of his 6,000 words is to convince you that Hyde, like other “free culture warriors,” is engaged in a project to “exhort[ others] to piracy and the plundering of culture.”

As a “free culture warrior” myself, I was a bit surprised to learn that I was in the business of “exhort[ing others] to piracy.” After all, my book Free Culture (2004) explicitly condemns so-called “piracy” almost a dozen times. I repeat that condemnation again and again in Remix (2008). And so I dove with eagerness into Wallace-Wells’ review, to see whether I had in fact made a mistake. Would The Nation finally erase my false consciousness? Was I now, and had I always been, a pirate?

It didn’t take much reading, however, to unearth the fallacy at the core of Wallace-Wells’ world: characterizing (while simplifying) Jaron Lanier’s work, Wallace-Wells refers to an “open-source imperative to piracy.”

Readers of my work will, with that single phrase, recognize the error in Wallace-Wells’ ways: for his target is an oxymoron. There could be no “open-source imperative to piracy” since “open-source” is a practice that rests explicitly upon a respect for copyright.

“Open-source” software, like Free Software, and much of what I refer to as “free culture” is creative work that is protected by a copyright license. Like any copyright license, these open source or free culture copyright licenses impose certain requirements on people who would use creative work in a manner that triggers the application of copyright law. They all depend upon the copyright system to function in the way that their copyright owners desire. They are expressions of the will of a creator within a system that respects copyright. There could therefore be no conflict between “copyright” and anything remotely attached to “open source” culture. “Open source” culture celebrates one of the freedoms to choose that the system of copyright gives us.

So called “piracy,” by contrast, is a denial of a choice by a copyright owner. It says to the creator, “I don’t care what you want. I am taking what you have created.” It doesn’t respect the freedom that copyright law gives to the creator. It denies that the law should secure to the creator any such freedom to choose. The only relevant choice in pirate culture is the choice of the pirate to take. Not the choice of the creator to make her work available.

I understand the motivations of at least some of these so called “pirates.” Some are political. Some are simply selfish. But whatever complex set of justifications stands behind their actions, their actions have nothing to do with the “open source” or free culture ethic. What is distinctive about that ethic is that they enable creators to exercise a choice. They don’t try to justify the choice of consumers to take from a creator what she doesn’t offer.

Of course, the creator doesn’t, and shouldn’t, have the power to restrict access to her work beyond the limits of copyright. Thus of course, “free culture warriors” celebrate the rights of “fair use,” which are express limits on the scope of the copyright monopoly. But to celebrate limits is not to deny the legitimacy of the control permitted within those limits. I celebrate the moment a work enters the public domain. That doesn’t mean I deny the legitimacy of a period during which the work is under the protection of copyright.

Maybe, however, Wallace-Wells’ real concern is that by giving away some of the rights protected by copyright, creators would therefore encourage piracy. Maybe the concern is that being soft on rights is just the first step down a slippery slope to ignoring all rights.

But why would anyone believe that? Do public parks encourage trespassing? Does Bill Gates giving away more than $20 billion to charity encourage communism?

The idea betrays a sloppiness of thinking that has animated dozens of self-righteous “defenders” of the copyright system. The free choice of copyright owners to waive some portion of their copyright is not a rejection of copyright. It is instead — as even the great (and sadly late) Jack Valenti recognized when he endorsed the Creative Commons project — an expression of the freedoms guaranteed by copyright: The freedom, as any property system rightly secures, of the property owner to deploy her property as she sees fit.

That choice is not “piracy.” And in 2010, to suggest that it is betrays not just sloppy thinking. It betrays an extraordinary ignorance. This terrain has been plowed a hundred times in the past decade. It would take anyone keen to understand before they blathered on exactly 10 minutes to find any number of essays that have pointed to this error precisely. (Indeed, Hyde makes the point himself when he discusses both the GPL (p220) and Creative Commons (p244).) Yet here again is a defender of the sanctity of authors who refuses to read what other authors have written.

I’m all for protecting authors’ rights. But I think the most important thing to protect is respect for what has been written. Reading is the first step to that respect. Reading is what Wallace-Wells has not done well.

November 11, 2010  ·  Lessig  · Reblogged from  Huffington Post

Many of my friends have been puzzled that I have not been a strong critic of the Tea Party. Indeed, quite the opposite, I stand as a critical admirer. That means that while I don’t share most of the substantive ends of many in that movement, and I strongly object to the extremism of some, I am a genuine admirer of the urge to reform that is at the heart of the grassroots part of this, perhaps the most important political movement in the current political context.

My admiration for this movement grew yesterday, as at least the Patriots flavor of the Tea Party movement announced its first fight with (at least some) Republicans. The Tea Party Patriots have called for a GOP moratorium on “earmarks.” Key Republican Leaders (including Senator Jim DeMint and Congressman John Boehner) intend to introduce a resolution to support such a moratorium in their caucus. But many Republicans in both the House and Senate have opposed a moratorium. Earmarks, they insist, are only a small part of the federal budget. Abolishing them would be symbolic at best.

This disagreement has thus set up the first major fight of principle for the Tea Party. As leaders in the Tea Party Patriots described in an email to supporters,

For two years we have told the media and the rest of the country that we are nonpartisan and that we intend to hold all lawmakers to a higher standard.

This, they insist, is their first chance for that stand with the new Republican Congress. And the Tea Party Patriots have now mobilized their list to pressure Republicans to support this first and critical reform in the new Congress.

The Tea Party is right to push to abolish earmarks from Congress, and the defenders of the status quo are either deceivers, or just plain dumb. It is true that the total spending affected by earmarks is tiny. But by the same logic, one might as well observe that the bribes paid to Congressman Randy “Duke” Cunningham (Republican) and William J. Jefferson (Democrat) were tiny as well. Is that a reason not to prosecute those Members for taking them?

Earmarks are not bribes. But they are an essential element in the corruption that is Congress today. As Washington Post reporter Robert Kaiser describes in his fantastic book, So Damn Much Money, they have become the key to an incredible economy of influence that effectively enables lobbyists to auction too many policy decisions to the highest special interest bidder. That economy won’t change simply by eliminating earmarks. But eliminating earmarks is an essential first step to starving this Republic-destroying beast.

A government in which access can be bought, and influence paid for is not the Republic our Framers intended. They wanted a Congress “dependent,” as Federalist #52 puts it, “upon the People alone.” But through both Democratic and Republican administrations, Congress has evolved to become “dependent” not upon “the People,” but upon “the Funders.” Earmarks are a critical element in that dependency. And if we’re going to end government captured by an elite, we have to end that dependency.

This fight is just the first in a series that this more principled wing of the Tea Party movement can expect. For the truth is that not everyone on the Right shares their passion for ending the corruption that now rules Congress. During the rise of the GOP in the 1990s, some of the rights suggested that it was just “socialist” to question the power of the rich to buy influence over our government. The ideals of the free market, these GOP leaders insisted, should include a free market to buy government policy.

That idea is heresy to anyone standing in the tradition of Adam Smith, Friedrich von Hayek, Milton Friedman and Ronald Reagan. (Friedman, for example, insisted on a free market within the rules set by the government; he didn’t believe in a free market for those rules.) Yet that idea governs too much of both the Republican and Democratic parties of the past 20 years. It is an important and valuable development for the Republic that a powerful and passionate political movement on the Right makes ending this free market in government influence a core plank in its platform.

But if the Tea Party is really to be “nonpartisan,” then it needs to stop limiting itself to speaking to Republicans alone. Important Democrats share at least some of their reform ideals, including otherwise liberal Democrats, such as Congresswoman Jackie Spear (D-CA). The movement should rally Members from both the Right and the Left for any reform that is right (as in correct). The Tea Party Patriots’ reform to abolish earmarks is plainly that.

Now, of course, I have no illusion that my admiration for the Tea Party can be returned. A movement against “elites” is not likely to listen to a Yale educated Harvard Professor. But if that movement is to be as central to the restoration of the American Republic as its most passionate supporters believe, then it needs to recognize that while we don’t share common ends, we do face a common enemy. Special-interest-government is anathema to both the true Right and the limping Left. Progress would be to work together to end it.