Lessig

Dan's right that my views are not necessarily CC's views. (For example, CC licenses are "perpetual." I've failed to get CC to adopt "limited times" licenses). And Dan's certainly right that CC simply tries to provide a framework of licenses within the existing copyright system -- leaving to others the task of law reform.

But I read Scott's criticism of my work a bit differently. It has taken me too long to recognize this, but here goes:

Matthews, as I've said, is a coder. Good coders think logically. A principle applied strongly in one part carries over to another -- to the logical mind. Exceptions are inelegant.

Thus when people (like I) push for free use, or compulsory licenses, in one part of the IP universe, logical sorts wonder why, or how, such a principle gets limited to just that one part. Indeed, they find it difficult to see how it could ever be limited to that one part. The idea is a meme, and memes infect as they spread. Thus they are likely to resist changes in one area that they would not like to see in another.

Thus, to such minds, to support a compulsory license for The Grey Album like creativity is the same thing as supporting a compulsory license for all creativity. It is one step on a slippery slope to a general compulsory right for all derivative work.

This rightly concerns Matthews -- a coder. It should rightly concern someone like John Grisham -- a compulsory right to make movies from his books? It rightly concerns a broad range of creators, who believe, rightly, that they should have the right to control derivative uses of their work.

But I think the source of this concern is mistaken. And the best evidence that it is mistaken is the law itself. For again, as many have pointed out over and over, but as many seem to miss, there has been a compulsory right covering a kind of derivative work for music in the Copyright Act for 95 years. And yet this compulsory right has not yet generalized to all work. Neither is it likely to.

The compulsory right I am referring to is of course the mechanical reproduction right. This gives a musician the right to "cover" another musician's recorded music, so long as s/he pays a fee set (indirectly) by the statute.

Let's be clear about just how "radical" this right is.

If Grisham writes a novel, he gets to sell the exclusive right to make a movie based on that novel. If he sells that right, then the law says no one else can make a movie based on Grisham's novel. Period.

But if Grisham writes a song, and then authorizes a recording of it, anyone has the "right" to make another recording of that song, so long as s/he pays Grisham according to the rules set in the statute.

This "right to cover" applies to non-dramatic recordings. It effects a radically different scope for the derivative rights that a composer is granted under our law. And it has been, as I've commented before, a compromise of the composer's right that has been critical to the growth of the music industry. (See again the testimony of the recording industry in 1967).

Now the point is this: You may or may not think that this radical compromise in the scope of the derivative right granted composers is a good thing. But one must recognize that the compromise has not spread throughout the Copyright Act. There were particular reasons supporting the grant of this right in 1909. Those particular reasons have not generalized everywhere. Nor need they, if the justification for the compulsory right is kept true to the facts.

This fact, I think, should caution coder-minds away from overly quick explicit or implicit generalizations. Indeed, it should caution anyone about generalization in copyright law at all. The law is ridden with contradiction -- for good reason in places, and bad in others. But the history does not support an inference from "I propose a compulsory license over derivatives in area X" to the conclusion that derivative rights generally will be changed.