Remix Is a Cultural Right, Lessig Says

November 18, 2004

LessigDigital technology is accelerating the age-old cultural tradition of "remix," according to Stanford University law professor Lawrence Lessig, and producing an emerging free culture that our existing notions about copyright protection should not be allowed to obstruct. Lessig spoke on "The Lawyer's Work in a Free Culture" at the inaugural Lester Zittrain Distinguished Lecture Nov. 11. The annual lecture was created through the bequest of Lester Zittrain, a 1955 graduate of the Law School and a prominent lawyer in Pittsburgh who was known for representing sports stars such as Terry Bradshaw and Mean Joe Green. His son Jonathan, a law professor at Harvard University and co-founder of its Berkman Center for Internet & Society, introduced Lessig, whom he considers a mentor and close friend. Lessig is the author of three books on the implications of digital technology, warning about the concentration of corporate control of copyrighted material, and formerly was a special master in the U.S. government's case against Microsoft.

"Mix is the idea of taking ideas, expressions, putting them together and making something," said Lessig. "Remix is the practice by which others take that [mix] and re-express it. Culture is remix. Knowledge is remix. Politics is remix. Everyone in the life of producing and creating engages in this practice of remix.

Lester Zittrain's son, Jonathan, introduced Lessig.

"Companies do it," Lessig said, citing Apple's Ipod. "Politicians do it," he continued, citing President Bill Clinton's adoption of Republican positions to win the presidency. "We alldo it. This is what life is in the expression of creativity. Remix is how we live. I mean to insist upon allhere." As an example, he cited the Brothers Grimm, who collected and "remixed" folk tales, Hans Christian Anderson, who refashioned Danish children's stories, and Walt Disney, who adapted from both of them again to turn the stories into animated films.

It's obvious that authors are engaged in remix, Lessig said, but so are readers when they critique movies or books with their friends. "You are consuming your culture in a particular way and constructing your culture differently through these acts."

We need to recognize that "the practice of remix is free, in the sense of unregulated," Lessig asserted. "We need no permission… This tradition is free. At least with respect to the reader, you can say it's absolutely free." He gave the example "of reading a book, selling it, or giving it away or even sleeping on it" to show the absences of copyright regulation because none of those acts creates a copy of the book.

Even for writers, remix is "essentially free," Lessig said. "If we think about the map of remixing, one small part is regulated by the law. When we include all of us in the story of how culture gets made, the larger part has traditionally lived free of the regulations of the law."

It is nonetheless true that "this regulation we call copyright is good," Lessig said. "It's an extraordinarily important part of any modern society. It's necessary to protect against a certain type of unfair competition. A world where you write and I can take is a world which is unfair to you and will produce less for us… So we use this right to assure a certain type of commercial activity."

Lessig outlined the history of copyright law beginning in 17th-century England with prohibitions against publishing the same map, chart or book already published by someone else. The "architecture" of copyright, he said, "is tied to a specific technical fact," and of all possible uses, the law aims at regulating just some. Before 1909, the law did not regulate copying, but publishing. But in that year the term "copying" was substituted where the law had previously said "publishing." "Technically, the change was an accident, a mistake," Lessig said. But that "accident" had enormous implications as the technology for copying things changed. It now causes huge problems for remixing.

There has always been a tension between those who defended the exclusive right of the work's creator and those who controlled copying technologies, said Lessig, drawing a line between what he called the "commercial sphere of activity [writers] and the beyond-commercial sphere [readers]."

For the most part, the tension didn't matter because there was a "tight connection" between the technology of copying and publishing that meant the scope of copyright was properly and effectively limited.

With the emergence of digital technology and its radical opportunities for remixing, the accidental harmony between copyright regulation and publishing technology is becoming dissonant.

"As this technology expands dramatically, not just the commercial creators, but anyone using technology to express and spread culture engages in the very same acts that produced the predicate for copyright's regulation," he said. "Now we face a question about whether the scope of this exclusive right defining the requirement of permission before creativity can occur should extend as broadly as the technology does itself."

Expanding copying technology is driving the expansion of copyright regulation, he argued. Does that "automatic, accidental change continue to make sense of the motivating purposes behind the practice of law we call copyright?" he asked.

"The cost of remixing culture is now tiny, so the opportunity for remixing has been spread broadly." Lessig, who used PowerPoint throughout his lecture, showed examples of remixed Beatles music, a Cannes film-award winner, "Tarnation," (which cost $218 to make), partisan political commentary on the election campaign, and Peanuts cartoons with unexpected soundtracks as examples of creativity not previously possible for the general public.

"Anybody with a $1,500 computer has the power to capture sounds and images from the culture around us and use this technology to remix them to say something different, and to spread that creativity using a free digital network as broadly as demand calls for," Lessig said.

Digital remix will change the democratic potential of the culture, he asserted. It won't be "a New York Times democracy, but a blog democracy, increasingly peer-to-peer," with a wider range of people participating in and criticizing the society.

The problem is that the remix technology also allows piracy. "I don't have any patience with people who download content that they know the copyright owner has no desire that they get. I think that practice is wrong and extraordinarily destructive of the potential that this platform could create because it incites the war [over intellectual property]." He called the contest over use mainly generational.

New laws that attempt to prevent piracy are "breaking the architecture of the Internet" and rendering remix basically illegal. Laws are saying that "before you use culture you need permission first," Lessig said. "And we know permission is never going to come" from most copyright owners unless at prohibitive expense.

A legislative resolution of the issue, likely in the next couple of years, would have "strong digital rights management and a liberal fair use policy" allowing copies to be made for use in the home, he predicted. This solution addresses the "architecture of revenue problem" but destroys the possibility that the technology can be used for remix by interfering with the ability to share new creations with others.

The real problem is not copyright or technology, but a particular version of copyright that does not fit the technology and is too "cumbersome and bloated and expensive and too lawyer-centric," Lessig said. In 1930, for example, 10,057 books were published in the United States, he said. Today, 174 of them are still in print, leaving 9,883 still in the cultural tradition but unavailable. Those could be scanned and made available for free on the Internet, "the way, in principle, they are supposed to be available in every library."

Congress's repeated extension of copyright-11 times in the last 40 years, most recently in 1998 to extend the life of copyright by 20 years-means the 1930 books are still under copyright protection. There really is no way to discover who owns them and should be approached for permission. "You literally have to hire private detectives to track it down," he said. "The system is designed for a different technology, and the technical word for the system is 'insane.' …The costs of doing right are too high."

Meanwhile, the concentrating corporate ownership of copyrighted material means that "never in our history have fewer exercised more legal control over the development and spread of our culture than now," Lessig lamented, "not even when copyrights were perpetual, because then they just regulated the act of publishing the same book. Never before has the law put itself so deeply into the process of creating culture."

He blamed the problem partly on special interests lobbying for copyright control and ignoring public interest. He called on students and lawyers not to consider their loyalty to their client as their only duty. They should remember as well their responsibility to the bar, to the collective good, he said. "I think we have lost this practice. We're acting as agents, not lawyers.

"What's been lost in this debate is our understanding of what we as lawyers are supposed to be," Lessig said. He held up Lester Zittrain as a model, especially for his emphasis on dignity. "It's our work to teach that dignity in our tradition.

"The most important thing to do about this technological capacity is to teach it," he concluded.

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