Lessig’s ASMP Presentation Deconstructed

ASMP has posted the videos from its Copyright Symposium and, frankly, I’m more concerned than ever.

Again, I want to reiterate that I believe firmly that ASMP has the absolute best intentions in exploring copyright and the digital economy. I also believe that we need to consider new systems to pricing and structuring licenses for this new economy. There is much good in what ASMP means to do. They are well-meaning, good people– those ASMP folk. Many are friends.

It is damn hard to have to tell friends that you think they are making a mistake. A huge mistake. But this symposium served to promote an agenda which is contrary to the stated mission of the organization, particularly by giving Lessig not only a forum, but deference in questioning. In other words, he was treated as an honored guest worthy of great respect rather than the fundamental cause of much of photographers’ misery.

Let’s start with Lessig’s Sousa quote and comparison. Sousa was talking about how people sang songs at their homes, performing before friends, sharing the music. Lessig talks about this as the pro celebrating the amateur and an example of the read/write culture where the consumer is also a creator. He says that this stopped in the 20th century and claims that in the 20th, we became a read-only culture.

I call bullshit on this contention. On two levels. First off, Sousa was complaining about getting ripped off and arguing for a strengthening of copyright protections (Wu, Tim, Copyright’s Communications Policy. Michigan Law Review, Vol. 103, p. 278, November 2004.). The man was a charter member of ASCAP and was all about the creator being justly compensated.

Secondly, saying the 20th century was somehow stilted creatively, that the consumer did not also create, is patently untrue. It was done, but it was done within the bounds of copyright law (mostly).

My brothers and I, in the early 1970s when I was a very little girl, made home movies, but not of the family trips or the like. Our movies were mostly sci-fil, often recreations of Lost in Space episodes. My brother John also created a series of board games based on Star Trek (the original series) that we and our friends played. My friends and I replayed movie scenes when we played make believe or even with our Barbies®. We sang songs for our friends, just like in Sousa’s time.

When I was in undergrad, a friend and I brazenly re-wrote The Sound of Music songs. We turned the classic family film (which we adore, btw) into an R-rated parody, with new titles like “You’re my 16th (Going on 17th)” and “My Favorite Flings” and lyrics to match.

And we weren’t alone. As an adult I’ve talked with friends about what they did growing up and it was all pretty similar. Maybe not as geeky (or risqué), but the general idea of recreating things seen at the movies or making movies of friends dancing to records or similar, well, just about everyone did something like that.

In other words, we were remixing culture way before anyone had coined the word.

All of the stuff we see on YouTube now is very much like what we did then. And like what our parents did before that. And all this during the century Lessig calls “read-only”? Please… we were just as creative (it may be argued more so, since we made more up without seeing similar stuff!).

So what is the difference? The distributive channels. When my brother made his sci-fi home movies (he actually would scratch phaser fire frame by frame onto the film stock!) the only people who saw them were us– the family and friends. There was no duplication and distribution, and no one made any money off any of it. It was private, personal use only. Fair use.

Now, the same creative acts (essentially) are posted on distribution channels like YouTube and reproduced for the world.

Lessig would have us equate the distributive channels while dismissing the truly equivalent which is the art created. He is saying creativity in the 20th century was suppressed because of copyright (read-only culture, remember) and has been “freed” in the 21st century by people ignoring copyright laws. But at the same time he equates distribution on a for-profit system like YouTube to singing in a back yard.

In fact, in this so-called “suppressive” 20th century with its “onerous” IP laws we have arguably seen more invention and creativity than at any other time in human history (See Gilbert; and note how many of the items and people in this poll are from the 20th c.; and this timeline of inventions). Almost the entire history of cinema is contained in the 20th century (the Lumière brothers invented cinema in the 1890s). Art has transformed and explored more, as has theatre and literature. It is simply untrue to describe the 20th century, with its expansion of copyright (and patent, etc.) protections as suppressing.

No, but Lessig’s argument hinges on that. It also hinges on us not looking back in history just a few years to see what he actually was calling for in his push for the Free Culture Movement. He didn’t want to make things fair and to enable creatives to make a living off their art. No, he wanted essentially all creativity to be free (or of minimal value and for a very brief time). He used to advocate for a 10 year copyright limit (shorter than the original 14-year term he now cites in his presentations) and he has repeatedly been quoted as saying that most IP doesn’t have any value beyond even a year (when most books go out of print).

Remember, the original CC licenses were all about free access. Oh, and BTW, they were unneeded since anyone could put her/his own work into the public domain or license it however s/he chose, without CC. CC licenses aren’t even a simplification! The actual, real licenses are just as complex as any–here is the actual “attribution only” license language.

Anyway, Lessig also doesn’t want us to look behind the curtain to see just who really benefits financially from the Free Culture Movement. See, Lessig’s CC has gotten money from Google’s Brin and has worked out deals with both Google (who owns YouTube) and Yahoo! (who owns Flickr). And, arguably, those two companies have become huge because of the Free Culture Movement and CC’s original “culture wants to be free” attitude. Think about it, those two companies makes huge amounts of money selling advertising because huge numbers of people go to those sites. Why do people go there? Because of the free content.

Google doesn’t sow, but man, does it reap! And the people who create are the field workers, at best share-croppers but they usually don’t get anything for their efforts.

Speaking of money, does Lessig ever divulge his own corporate holdings? How much stock does he have in any of the companies that benefit from his work, if he owns any at all?

As was said in All the President’s Men: follow the money.

Again, I want to say that I do not think the copyright system is perfect. Of course it has flaws and some of them are serious. And, as I said above, photographers must consider new ways of marketing their licenses. But Lessig’s beautifully spun but factually inaccurate read of the value of IP and the cultural impact of copyright is not the way to go. We have to look past the great showman with such an ego as to advocate a change of our constitution rather than admit he was wrong. Quoting an article from The Nation:

Faced with implacable resistance to copyright reform from big industry groups, Lessig tried a variety of tactical maneuvers. In 1999 he challenged the Bono Act, taking the case all the way to the Supreme Court. Though his friends and colleagues advised him it was unwinnable, Lessig thought the underlying principle so clear, and the Constitution’s language about “limited” copyright terms so plain, that he would prevail. But he managed to win only two dissenting votes, from Justices Stevens and Breyer. “He had a terrible reaction to losing the…case,” recalls Richard Posner, a seventh circuit judge Lessig had once clerked for. “I told him truthfully…nobody could have won that case. That case was a clear loser. He couldn’t accept that. He was terribly upset about that loss.”