A number of readers have directed my attention to an interesting blog post by Mark Fischer, an attorney and law professor, in which he offers his thoughts on Lawrence Lessig’s latest book Remix. As for my own take on the book, as I predicted it is largely a remix of his other works such as Code and Free Culture. Hey, nothing wrong with that, as a reporter I was the king of repurposing prose. Despite having little new to say and despite my strong disagreements with many of his arguments, I think Remix, which came out in October, is worth a read. At some point, Mr. Lessig is expected to use his own creation, Creative Commons, to make the book available at no cost, so watch this space.

Now to the review by Mr. Fischer. It is not as lengthy or as full of spunk as my favorite review of a Lessig book, one of Free Culture by University of Illinois Law Professor Lawrence Solum that I quoted in my paper “Artists and Culture: Empowering the Former to Foster the Latter.” But it is very much worth a thorough reading. I’d like to take a moment to extract a few of Mr. Fischer’s key point.

First, he notes Mr. Lessig is promoting remixing and is argues there is a difference between amateur and professional remixes. But Mr. Fischer states:

It’s a difficult distinction to maintain in a practical sense, though, because so many of the well-known Web sites that host user-generated content (remixes or otherwise), like MySpace, are commercial entities.

Professional authors have to work for food—that is, unless they have day jobs, perhaps as professors, lawyers or insurance executives.

That is where Mr. Fischer, who is open to much of what Mr. Lessig is saying, seems to draw the key distinction between himself and the Remix author. Namely, something I have also pointed out, the need to distinguish between original creation and remixing:

One thing missing from Lessig’s book is sufficient acknowledgement and encouragement of the role of the original creator. It’s the creator’s inspiration that makes it possible for a remixer to remix.

Sometimes I hear that all creativity is remixing. Mr. Fischer acknowledges the meme that there are only seven plots in the world, but notes that the actual novel following one of those plots is an original work. I would elaborate on that by noting that the works being written by that original author did not need to incorporate other copyrighted works in order to exist. Inspiration, yes. Cutting and pasting, no. So while there may be originality in the collage work done by remixers, they are not composing their own songs, filming their own motion pictures, writing their own words.

Lessig also doesn’t appear to acknowledge the desire of originators to protect their works from distortion… This point matters because in a world where remixers can harvest the works of prior creators without permission or without payment of a fee, the original creators don’t just lose out on money—they lose out on asserting control over their works.

Yes, we don’t have moral rights in the U.S. But fortunately the rights creators have give them some say over use. Under existing law, sound recordings by a Christian music group fortunately cannot become the soundtrack of an adult film without the (unlikely) consent of the band. But when you build in flexibility on use you increase use distasteful to the creator, even in Mr. Lessig’s world in which the amateur/professional baby is split.

Mr. Fischer isn’t a total defender of the status quo. He does say it “isn’t cool or fashionable to say it,
but copyright has been a roaring success,” but adds the “system actually worked pretty well, pre-Internet. Today, the copyright system is in need of real change because we behave differently.”

It is true we behave differently, and more is possible now than ever before. I have acknowledged this repeatedly, and in many ways new technologies empower original creators as much as remixers. As readers know, however, I don’t see how that means a change in copyright law. Change is happening while we preserve creators’ rights. New business models are rolling out daily to allow these new technologies to be used by consumers in very satisfying ways, and it’s silly to interrupt that growth by changing the ground rules in a way harmful to those offering new uses.

It’s not clear Mr. Fischer is advocating a change to copyright law. He does strongly resist Mr. Lessig’s call to require registration of copyright, which Mr. Fischer correctly notes would force the U.S. to withdraw from the Berne Convention “and separate itself from the world’s view that copyrights are inherent upon creation of a creative work.”

Pushing the United States back from the prevailing laws of other countries would not be a positive step for creators or remixers. If everyone is a creator, it simply doesn’t follow that we should make it harder and more bureaucratic for both old-style creators and the new class of remixers to protect their creativity. Adding to the burdens of creators who want copyright protection also isn’t consistent with Lessig’s concerns about copyright’s “massively complex system of federal regulation.”

Mr. Fischer notes the RIAA has ceased its suits against uploaders, and adds “[e]ven copyright law’s fans have to wonder about the extent of enforcement efforts.” Yes, I would wonder if we assumed civil enforcement was the only option to defend creators’ rights. But it is not. Take education. The RIAA, which lost money in its litigation, argued that its goal was to raise awareness that online infringement was against the law. They clearly did that. Copyright opponents can argue about the public relations hits the RIAA may have suffered as a result, but it was educational for millions. We at the Copyright Alliance also are firm believers in education. However, we don’t do it through litigation but rather by providing materials to K-12 classrooms, which focus on the empowerment of copyright for student creators and also on fair use in and outside the classroom.

Mr. Fischer concedes that Professor Lessig is right that fair use is confusing. I would also echo that. And Mr. Fisher also hits on the paradox of fair use:

The virtue of fair use is also its failing: It’s a flexible set of factors rather than a rigid set of rules. Because a determination of a fair-use defense is set forth as an analysis of a set of factors (for example, how much of the underlying work is used, will the fair user’s handiwork hurt the potential market for the work being used, et cetera), ambiguity is an unfortunate way of life in the world of fair use. Lessig rightly points out the doctrine’s limitations.

It can be seen as unfortunate, but perhaps the strongest advocate of fair use in Washington, Rep. Rick Boucher (D-VA), has made it quite clear over the years that the worst thing that could happen for practitioners of fair use would be to have permitted uses more clearly articulated. Technology changes constantly, uses surface that weren’t previously anticipated, and statutes wouldn’t include those new uses. No, the fair use model is a bit clumsy, but any alternative would be far worse for both creators and remixers, and it still is far more robust than that of any other country with a working copyright law system.

The remixers, in one way or another, will grow in power (there are a lot of us and a lot of works out there ripe for remixing). Lessig is right to try to move away from dwelling on the word copy in copyright. He is right to want to decriminalize copyright misbehavior by individuals. Yet Lessig hasn’t figured out how to make remixers legal without bruising the original creators. Of course, creators who wish to throw their original creations into the mosh pit of the remixers are already free to do so.

This is a point we make repeatedly here at the Copyright Alliance, namely that creators are always free not to enforce some of their rights or to forfeit them entirely. It’s great to celebrate recording artists and authors who give away their works online, if they feel that is the best business model for them I applaud them. I will applaud Mr. Lessig when he finally releases Remix under a Creative Commons license. But I will also support any recording artist or author who prefers to try to earn a living off of the sale of their works, and so I applaud Mr. Lessig for seeking profit on his hard work on his book, even though Mr. Fischer correctly notes he has a primary source of income in his academic post. As the author Mr. Lessig holds the rights to his work and can choose how to enforce those, both through a voluntary publishing contract and a voluntary participation in Creative Commons.

Finally, I’ll end with a quote from Mr. Fischer that says so much it needs no further elaboration from me:

If we move toward making content free for copying, distribution and remixing, the professional creators and their distributors will have an even tougher future. Erosion of the copyright system comes at a price. If we have to choose between encouraging original creativity and remixing, why not err on the side of encouraging the originators?

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This entry was posted on Tuesday, February 3rd, 2009 at 3:26 pm by Patrick Ross and is filed under copyright law, copyright opponents, creators, education, fair use, international. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.