[Comedies of Fair Use] Lawrence Lessig

Andrew Raff
April 28, 2006

It's hard to take notes about Lessig's presentation because he actually uses his slides well-- to add context and not merely to duplicate the text of his talk. But this is a blog-- where it's just as good to do something quickly as it is to do it well:

Testifying before Congress, JP Sousa lamented the development of mechanical music reproduction, which would kill the culture of sitting around and singing popular and traditional songs.

With analog works, standard, everyday uses by citizens are unregulated (read, etc.). A small sliver of uses that involve copes
1. regulated uses (distributing mass copies)
2. fair uses (quoting a book in a review)
3. free uses (reading, loaning, the everyday uses by individual citizens)

New digital/internet culture
Two very different internet cultures evolving.
1. Read only culture (RO)
-Extraordinary empowered by these techs to buy and consume culture produced elsewhere. eg: Apple iTunes, pay-per-read ebooks.
-Offers perfect control over how people consumer-- the couch potato culture

2. The read-write/internet culture (RW)
-blogger, flickr, 6apart, myspace
-consumers don't just consumer, but create and share creativity.
Examples:
-anime music videos (redits anime movies to create music videos. I know what we're doing for our next video...)
-grey album, bush-blair, bush:hard work. (link to this)
It is a part of literacy now--
57% of teenagers created and shared "content" themselves and share it on hte internet. How they speak and think.
Anyone with a $1500 computer can do this. [just so long as they have 1500 to get a computer.]
It's the same kind of speech people engaged in before, just using different tech to facilitiate this kind of speech. Differently empowered speech.
Freedom to speak.

Copyright law on the internet serves to promote the vision of the read-only culture on the internet. In the analog world, (c) owners couldn't control these normal everyday uses.
If the law controls copies, in the digital world, those normal uses create copies, and so the amount of uses that are regulated by (c) law increase to include most uses.
DRM tech perfects control of how culture gets consumed-- promotes the RO culture.

The RW culture conflicts with (c) law.
This culture makes use of copies as part of the normal (non distributive) uses
But the law presumptively regulates copies, so uses are presumptively illegal and permission is not coming.

At a fair use conference, Lessig comes out against fair use.
World with fair use is better than one without.
But, fair use shifts the debate over the important questions about how culture gets regulated.
Shifts attention away from free use.
In a world where every use is a copy, the free uses because presumptively regulated.
So then, why do we have to justify any freedom to use this.
It's a very bad thing that the law regulates as broadly and presumptively as it does.
Quoting Prof. Litman: in the digital world, (c) law touches everyone and everything.
Discussion of fair use obscures the fundamental question: "why regulate at all?"

The second problem with fair use is that it ignores the costs.
Fair use is expensive. 4 factor balancing test is not too easy. There are no clear simple rules in fair use.
This is law written for lawyers-- complex, uncertain. It's harmless where it's big companies that can afford (good for lawyers). When applied just by lawyers, it is decided rationally.
But it's not just lawyers in court anymore. It's any idiot with a computer.
Lawyers kill markets for creativity because of the uncertainty to the process.
Difficulty of acquiring rights to uses makes it difficult. e.g. films at Sundance needing to clear music rights. By leaving uncertainty, it drives away creativity (through risk-aversion) and makes it difficult (if not impossible) to sell marginally commercial (non-mass market) creative works.

See Patry & Posner- Fair Use and Statutory Reform in the Wake of Eldred

Incentives for (c) owners to overclaim their rights and the costs to creativity-- not only the $$, but also prevents release of works by risk-averse creators.
We tend to focus on the $$ cost and not the threats to free speech.

Lessig feels blue.
What solution?
System of fair use is ridiculous for regulating this kind of speech
But we live in a culture where to question the foundation of IP law is to be called a communist-- IP McCarthyism. Anything other than incremental change is a non-started in DC

Some ideas to mitigate the problem:
Documentary Filmmakers’ Statement of Best Practices in Fair Use (previous reference)
Stanford CIS Fair Use Project
Free Speech Insurance Cooperative and "fair use" insurance liable claims.

What we really need is some way of overcoming the insanity of these ways of regulating access to speech.
(c) law is necessary, but it shouldn't extend beyond what is necessary (and threates free speech values)
We need a clear line (an affirmative fair use carve out) and limit the speech regulation to what is necessary and leaving the rest to be free.

The one thing Lessig agrees with Jack Valenti on is that the cost of the current copyright law is the creation of a generation of criminals. The morality expressed in the use of speech by children in a way that is against the law. Producing a generation of kids look to the law and see the law as an "ass." And avoid the law and disengage from the idea that the law matters. There is great harm produced by this attitude towards the foundational rule of law in this country. [The broken windows theory of copyright.]

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