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Stephen Downes

Knowledge, Learning, Community

Sept 01, 2004

Lawrence Lessig outlines the history of remix - the practice of using materials from previous works to createnew works, and contrasts this with the copyright "insanity" that has come to characterize the legal environment today. Summary of his talk at ITI in Utah.

The important thing about remix is that it has always been done and always been free. Now there were some exceptions. Sometimes it was too expensive - remixing films, for example. And in other cases, copyright intervened, again in the case of film. But these restrictions, historically, were rational and limited, driven by real constraints, the economic constraints, and the legal constraints, which traditionally were extremely small. Commercial remixing was restricted by law, but beyond commercial remixing, it was always free.

We have now seen a radical change caused by technology. The cost of remixing is now small. And the cost of coordinating (eg., free and open software projects) is tiny. These projects are enabled because it is inexpensive to produce content, and to coordinate the creation. The technology is now no longer restricted to the commercial field. Example, D.J. Dangermouse's 'Grey Album'. Or, for example, a film, 'Tarnation', that cost $218 to make - made by remixing home videos. The most important examples of remix we have seen in the last six months have been political.

The potential of remix is enormous - not just for creative work, but for democratic work. It nis a means of capturing images and sounds from our culture and remixing them in a way that is powerful - it changes the power to speak, from a broadcast technology to a bottom up technology, a blog technology, a peer to peer. It will affect many different speheres. Most importantly, it will affect education, the arts and the commercial sector. The potential here is hude to do things differently.

But, against this, the insane: the law. Sympolized by (c). It was originally enacted as a necessary restriction in order to create sufficient commercial incentive to produce creative work. I am findamentally in support of continued and vigorous copyright. But sensibly structured.The law is this. If you are making a 'copy', and if the material is 'copyrighted', then you need permission. This form of regulation has radically changed. Think, first, about 'copies'. The law spoke originally of the act of 'publishing' which had in mind the idea of a printing press producing a verbatim copy of the original work. The remix was totally unregulated.

If you wrote a book, I was free in 1790 to make a play based on the work. In 1909 the law changed, to include the word 'copy'. That change was an accident - it was improperly used to describe what you would do with a book. But you would only publish a book. The use of the word intended no change. But what the word did is to tie the law to technology. As technology changed, the reach of the law changed. Since 1909, the technologies are no longer restricted to the few, the expensive and the commercial. The law has had to struggle with the copy machine, and today, the computer.

Historically, very little was copyright. It was an 'opt in' system - you had to register your work, you had to mark your work, and you had to renew it. This meant more than half the work was never registered, and 90 percent was never renewed (in the 19th century through to 1978). "A tiny regulation of a small proportion of commercial work." In 1976 the law changed from an opt-in system to an opt-out system (maybe - no court has ever ruled on the right to opt out of copyright - this is a mandatory opt-in system automatically extending copyright to every creation the instant it is created) for the full term of copyright. So we went from 16 years for some materials to 95 years for everything.

That change creates an extrordinary burden, not just because of the term, but because of the enormous inefficiency of regulation. Consider, for example, that of the 10,057 books printed in 1930, 9,883 are out of print. What would you have to do to make these books available on the internet? There is no list of copyright owners anywhere; "you've got to hire private detectives to track them down. The system itself doesn't keep the data. So imagine the cost of this project." The system is insanely expensive, and in a way that does not good to anybody - it doesn't benefit anyone, and it stifles the opportunity for digital technology to spread the culture.

But there's more. If 'technology' means 'everything is a copy' - which, of course, is the design of the network - and if the consequence is that everything is copyrighted - then all remix today presumptively requires the permission of someone first. The law says today that if you are to remix, then presumptively, you have to seek permission first. Consider one of the reasons why the lawyers prohibited one of the political remixes - they said, and I quote, "Because it is not funny." It is expensive to ask for permission - if you simply ask, they will not respond, and if you use lawyers, the answer will be no. This is a permission culture - and this is insanity.

The law usually deals with insantiy - it usually 'incents' sanity. For example, consider tresspass law. A person who owned the land, you owned the sky, to the stars, which made it difficult for airplanes. This was taken to court by a family called the Causbys. The law was changed - "common sense revolts at the idea" that the airplanes would have to secure permission to fly over the property. But - when the insane have lobbiests working for them, "common sense sleeps." This is what we have right now.

What ought to happen is that this ought to be changed. Not abolished, but changed.

The plea: help us do something about it. In my naive law school professor mode, I thought that if I went to the Supreme Court it would overturn the law on the basis of common sense. But even the Supreme Court has not been strong enough to resist the story being told by the lobbiests.

Som the method now is to mark the work according to the freedoms granted by the work. You pick those and you get a license expressed in three layers: a human readible version, a lawyer readible version, and a machine readible version. 'My Life Chanmged'.

What's important is that these expressives are voluntary. And they have had an extrordinary effect - in the first year, one million link-backs to the licenses, in the second year, four million. This project is extending beyond culture to include science commons, to free patents, and so on. But the structure is, not to compete with, but to complement copyright. But for copyright our freedoms could not be guaranteed.

This is one step. And we can hope, if it is extended, it will begin to change the legal culture that produces this kind of insanity. Because what must be recognized is that the freedom that technology builds will not be defended by the technology. You too have got to participate in a political battle. Because this insane law has the potential to destroy what you are building.



There is a thing called fair use, which depends on four factors, and what happens is, the judges throw them up in the air and see what happens. It is insanely expensive and risky. So publishers simply ignore fair use. "We don't think about fair use, we worry about whether we'll be sued. The cost of being sued will be more than the profit we'll make on the work." Fair use is not enough, it is not enough in insane times. We need something more than fair use.

We need a system that's much simpler and clearer. That's what CC does. If we get more content out there with a license like that, then we can tell students that you are free to tell students they can use it. Here's a private solution to a backwards law.

How do you publish anything today? If you publish anything, there are severe restructions on what you can quote. I published a book that quoted Courtney Love. My publisher said 50 words or 10 percent, which ever is less. And books are good. If you turn to film, the insanity is pervasive. Eg., in 'Life of Brian', there is a poster on a wall, barely visible, of an Andy Warhol exhibition. So the lawyers said, we need to get permission. The estate said, 'sure - $150,000 to use this poster.' So - thesystem in other areas is much worst - and digital media is now becoming video and music.

The law is a US creation - why can't we have a Switzerland? The United States blackmails them - if you want access to US markets, you must accept US law. This is hypocrisy in the worst sense. The US was born a pirate nation. The solution turns out not to be a solution. Iran, for example, has no treaty. It took one week for the MPAA to persuade ISPs to block access to the sites.

The DMA is part of this insanity - you have the right to have a back-up copy but not to make it. I asked about this just last week. It's contested, as to whether you have a fair use to back up your DVD. But even if you have a right, if you break the copright protection, that violates the law.

Does CC entrench copyright? That was my first intuition - fight it? But ordinary Americans have no clue about why this is insane. So we have to build demonstration projects that show why the law is insane. People see the CC button - eventually people begin to think about the issue. Then it becomes possible for people to stand up in Congress and say, "you should be reasonable." Today, when you saw we should ease copyright, they say, "you are a communist." IP McCarthyism. Now I'm not guaranteeing this. But I don't think we will win by take them on directly.

The publisher might still sue us if we translate 'Free Culture'. If your lawyer said this, he's wrong. My published suggested it. And what was impressive were the derivative works - for example, the audio version of the work. Or the wiki version of the book (I promised to review it next year, and say whether I liked it any more). We have to stand up to themystics, called lawyers, and say "Common sense revolts at your insane ideas."

Stephen Downes Stephen Downes, Casselman, Canada

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