Mark Fischer on Copyright in the Digital Age
, now back at Harvard Law School after years as a Stanford Law professor and lawyer, is uneasy about copyright. In his new book, “Remix: Making Art and Commerce Thrive in the Hybrid Economy,” Lessig argues that current U.S. copyright laws stand in the way of their stated purpose — of encouraging creativity. But, what, one may ask, is creativity anyway? Is it the original inspiration of Melville’s “Moby Dick”? Or is it a DJ’s playlist of electronica? Or a kid’s Machinima video? Lessig seems to believe that all are equally creative. How should the very notion of copyright evolve in this new context in which everyone is thought to be a creator and everyone dreams of being an Internet star?
The so-called copyright industries (such as record labels, movie studios, book publishers and newspapers) were, in a sense, precocious about feeling the pain of economic turmoil. The agent for change is a familiar one: the Internet. We do think of ourselves of being creative — even if it’s as simple as using Photoshop to alter an image we shot or using a Flip video cam to record a wedding. We can all express our creativity internationally now in what is commonly called “user-generated content.”
It’s old news that technology has given us wonderful tools to create content, to copy the content of others, and to distribute content (yours, mine, anyone’s) worldwide. What Lessig is most concerned with, however, is the ability to manipulate (or “remix”) and distribute content. For example, you can upload on the Internet your video of your 3-year-old dancing in combination with Prince’s music and W.H. Auden’s poetry. Maybe the world will instantly love the combination of diverse elements, maybe not. What is important is whether you have the right to remix Prince’s music or Auden’s poetry free of charge or even any acknowledgment.
The Internet’s immediate international distribution capability changes everything. A remixer confined to the untethered laptop on the kitchen table isn’t going to affect existing copyright law, the neighbors or the world. Still the question remains: If the technology to remix and distribute content already exists for us (and it does), is copyright a nuisance standing in the way of the future or does copyright have value? Lessig’s answer seems to be “yes” to both.
How best can legislators change copyright law so that it encourages creativity by remixers and doesn’t stand in its way? Lessig draws a distinction between “amateur” remixes (which he argues should pretty much be unencumbered for free use) and professional remixes (which should be subject to copyright law, albeit a revised copyright law that is harder to enforce). 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. The number of brilliant creators (academics excepted) able to thrive in the twin endeavors of both art and day-to-day unrelated commerce is a small club (Charles Ives, Wallace Stevens come to mind; Madonna and Jay-Z’s business acumen is largely directed at the music business itself). Quitting your day job doesn’t guarantee creative genius, but it surely nurtures it. 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?
It isn’t cool or fashionable to say it, but copyright law has been a roaring success (at least up to the past decade or so). One example: The sensational era of popular recorded music from in the 1950s until around the end of the 20th century has enriched us all (yes, including record companies, artists, music publishers and songwriters). The system actually worked pretty well, pre-Internet. Today, the copyright system is in need of real change because we behave differently.
Lessig illustrates well how in the past we were in a passive Read Only (“RO”) culture; in other words, the public consisted of readers, not creators. Today, he argues, we are also in a Read Write (“RW”) culture, in which readers are both passive and active as creators. He believes that the RW culture doesn’t compete with or undermine the market for the underlying works. That’s sometimes true, but not always. A remix could capture the public imagination as much as does the original. If remixers are creative — and that’s Lessig’s core point — why wouldn’t they ride others’ works to fame and (maybe) fortune?
The RW culture gave the “content industries” control over means of sharing content. Lessig notes that open-source software and Wikipedia have been achievements in innovatively sharing otherwise protectable content. These are, however, voluntary contributions of content to the common good. The remixers, on the other hand, unilaterally copy and modify the content of others.
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. Even if one believes that there can be only seven basic underlying plots, a remixer who changes half of someone else’s book or most of the lyrics in another’s song isn’t the same as an originator. (In trying to quantify a remix, Lessig defines it, in some contexts, as a “transformative work,” echoing a standard some courts have used to help determine a question of “fair use.”)
Lessig also doesn’t appear to acknowledge the desire of originators to protect their works from distortion. In the United States creators (endowed with the most important word in the entertainment business — leverage) can via contracts protect (to some degree) their integrity as creators and their work against distortion. Without leverage, U.S. creators have little protection. In the United States we have virtually no droit moral — the moral rights that in some countries, notably France, protect the integrity of an artist and his or her work against distortion, among other things. 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.But isn’t the war about who controls content over? The record industry’s campaign of suing allegedly infringing consumers, even if legally correct, was never an entirely happy one. The Recording Industry Association of America recently announced that it is largely abandoning the tactic of litigating against individuals accused of infringing copyrights by their uploading of music files on peer-to-peer networks and otherwise. Instead, the RIAA says it will focus on cooperative agreements with Internet service providers (ISPs). The RIAA is encouraging the ISPs to terminate the accounts of recidivist users. It’s likely that this voluntary effort will lead to a push for federal legislation requiring ISPs to take some action regarding the unauthorized distribution of copyrighted content. (The ISPs have benefited from Internet usage involving uploading and downloading content; it makes sense for them to share some responsibility.)
Even copyright law’s fans have to wonder about the extent of enforcement efforts. This is part of what Lessig calls his “fight against copyright’s extremism.” The criminal action against the man who uploaded the new Guns N’ Roses “Chinese Democracy” album before its official release date — and the possibility of up to five years in prison for the uploader — got much attention, much of it unfavorable.
In Lessig’s desire to make it more difficult for copyright law to protect works, he unfortunately advocates a restoration of the archaic requirement that one register a copyright in order to maintain ownership of it. Currently, an author owns a copyright upon creation of the work in a tangible medium (for example, on a disc or paper). Registration of an author’s copyright gives the author certain advantages (among them the ability of a U.S. author to sue in a federal court on a claim of copyright infringement, and to obtain attorneys’ fees if successful in the case). Even if one believes that copyrights are not a kind of natural, inherent right of authors and are instead designed to incentivize and reward creativity, this change would require that the United States withdraw from the International Berne Convention — and separate itself from the world’s view that copyrights are inherent upon creation of a creative work. It’s neither a practical nor a forward-looking suggestion to abrogate the nation’s treaty obligations and go back to fussy formalities. More compatibility among national copyright laws is better for the Internet. 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.”
Lessig is right to focus on ideas for dealing with the changes in technology and the behavioral dynamics of remixers. Copyright in practice has to some degree already moved forward and adapted. The Free Software Foundation GNU and GPL licenses, followed by the Creative Commons licenses (which the author played so crucial a role in creating and espousing), are better routes to permit creators to choose which works may be remixed and which may not. American copyright law has long offered the copyright-infringement defense of “fair use.” One problem with fair use is that it is a defense against infringement, not a right. Therefore, a would-be fair user (a parodist, for example, or the YouTube contributor who uploaded the video of her baby dancing to “Let’s Go Crazy” by Prince — and got sued for it) can’t know for sure whether the use is “fair” or not. 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.
Fair use — the best existing legal principle to protect remixers — is in the zeitgeist. Some recent cases have expanded the application of the fair-use doctrine. For example, in 2008 two courts upheld the right of Ben Stein to use a portion of John Lennon’s song “Imagine” in the film “Expelled: No Intelligence Allowed.” Most copyright lawyers probably would have cautioned the filmmakers to get licenses to copy Lennon’s composition and recording. That’s because the subject of the documentary — the theory of intelligent design — didn’t seem to come within traditional fair-use principles of research, comment, parody and the like regarding the underlying Lennon work. In other words, traditional notions of more or less absolute control of copyright works by the works’ creators and owners are clearly diminishing.
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.
Mark A. Fischer is a principal at Fish & Richardson in Boston, where he chairs its new media group and co-chairs its copyright law group. He teaches advanced copyright at Suffolk University Law School.