BERLIN, GERMANY — Ideas, fortunately, cannot be copyrighted. Ideas, however, are very important in the debate over copyright. Stanford University Law Professor Lawrence Lessig knows that, and is back with yet another book urging the reduction of rights of creators. This self-appointed pied piper of copyright dilution has given us a preview of his new book “Remix,” due October 18th, in Saturday’s Wall Street Journal. (I must note the irony of Lessig choosing to run his preview in a newspaper that chooses not to allow much of its copy to be viewed online without subscription.)

Close observers of this very intelligent and articulate scholar will remember that he announced he was leaving the copyright debate for a ten-year crusade against “corruption,” but most of us knew he couldn’t stay away from the subject that draws him so much attention. If the WSJ piece is any indication, though, he hasn’t brought much new to the table. In fact, it appears “Remix” will in fact be a remix of his previous books, blog entries and op-eds. That’s okay, though, I admire a copyright owner who can continue to find ways to make money off of his existing copyrighted works; a mash-up, so to speak.

Let us first make sure we agree on what exactly Lessig’s main thesis is. For years now, he has said the digital age has allowed revolutionary new uses with creators’ copyrighted works, limited only by those copyrights themselves, not technology. Our culture would be richer, he says, if only those secondary users (my term) could make use of the works of primary creators (my term again) without permission.

He makes this argument in the WSJ in the way he always makes arguments — by an extreme anecdote from which he extracts a need for dramatic change. In this case, he focuses on the by now far overplayed example of a woman who posted her baby on YouTube dancing to Prince. This video was one of many taken down when Universal Music gave YouTube takedown notices. The mother executed her rights and protested, something that took little time, and poof, her video was back on YouTube. It’s not clear how culture was enriched by this, but no matter — her only harm was to have this video from which she was not profiting briefly out of reach of some strangers. Universal Music then decided not to pursue an infringement action. The case only ended up in court because this woman sued, partnered with a highly litigious firm of which Lessig was a board member (he has the grace to acknowledge this in his op-ed).

This anecdote, which demonstrates the system is working (to the poster’s advantage, because copyright owners have to take down a multitude of videos while the poster has only to repost one), serves as the opening seven paragraphs of Lessig’s op-ed. This does not bode well for his larger argument.

As to Lessig’s contention that the digital age allows revolutionary new uses of technology, I would beg to differ. It does not. What it does do is make longstanding uses of existing works far easier to execute. (Mash-ups have been part of each of our lives since our kindergarten teachers had us glue a collage of magazine photos on posterboard.) This does not mean creators’ rights should be changed, however. Easier theft does not mean theft should be legalized.

Lessig does advocate that at the end of his piece, however. (Note the piece is called “In Defense of Piracy.”) Citing the fact that millions are violating copyright law on P2P networks, he says their activities should be legalized and other proposals should be pursued to make sure artists get paid. Those proposals always involve a collective licensing regime that removes rights from all parties in the music industry and instead places them in the hands of a collection agency. That is the ultimate in copyright dilution, and in fact puts him far to the left of many of the P2P network operators here at the Popkomm Music Conference in Berlin, who instead were seeking licenses from copyright owners. Only Lessig could make me side with a P2P operator over a law professor.

What Lessig fails to understand — or, in my opinion, chooses to overlook — is that the remixing he talks about has dramatic impact on the value of creative works. He says it’s basically okay if the remix is not for profit. Well, most of what we see in the marketplace is not-for-profit — you think any individual remixer uploading to YouTube is getting paid by YouTube to do so? — but the use, whatever its intention, cheapens the original work and reduces the very exclusivity that gives it value.

It deprives the creator of a fundamental right under copyright law — the creation of derivative works, and steps over many more, from copying to public performance. Of course, in his WSJ piece, he says the law should give up its obsession over the “copy” and instead focus on use. Remember how I said earlier that fair use is a modifier to copyright. How do we then create a system where the creation of the original work is a modifier of the ultimate use? How does action come before creation? It sure doesn’t work that way in biology. I hope in his book Lessig spells this out in more detail, including why anyone would wish to create a work that would be popular with these users when all she gets out of it is knowing she is a vassal to the user lord.

It’s true that everyone in the country is a user of copyrighted works. They are all creators of such works, too, but only a minority of the population creates works the rest of us would want to “use.” Thus, when looking at creators vs. users, the latter have the capability of being a “tyranny of the majority,” and that majority has a self-appointed leader.

But our Founding Fathers recognized that minorities have rights, too, and that they bring value to a society despite their smaller numbers. If we can in fact think about culture for a minute, we’ll realize that Lessig’s flipping of creativity and fair use is wrong. You cannot remix if you don’t have the creative work. The creative work is less likely to come if it is destined simply to be devalued. You can choose to allow all sorts of uses with your work — should Penguin Press permit it, Lessig can invite all sorts of mash-ups of his book — but that right needs to remain with the creator.

The digital age has empowered users to manipulate creative works. But it has also empowered creators to produce and distribute works like never before. Let us enjoy that. Let us not stifle that.

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This entry was posted on Sunday, October 12th, 2008 at 12:56 am by Patrick Ross and is filed under copyright law, copyright opponents, creators, fair use, founding fathers, internet, p2p, piracy. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.