Gallowglass

CFP Conclusions

The conference is over; our transcript of Larry Lessig’s speech below. Some health warnings may be appropriate …

Our coverage is very much on the spot stuff; it has summarizations, elisions, on-the-fly rewordings, and doubtless a fair few inaccuracies. Don’t use it as a definitive guide. Instead, if something looks interesting, check out the main CFP site for MP3s and streaming of the various panels. We’re happy to correct any glitches, and have started to do so already (thanks Bruce).

Finally, David Singer has also been blogging some of this stuff, at this site; check it out - a more analytical take than our own, stream-of-consciousness approach.

Keynote speech

Barry Steinhardt

Introducing Larry Lessig, I’ll quote a piece from Wired by Stephen Levy on how Larry came to public attention in the Microsoft case. In the realm of Internet politics and law, no one even approaches Lessig’s stature.He is a rock star, and has had the most brilliant career in Internet law, with two books, the Creative Commons project & c.

Larry Lessig

I want to talk about culture, about the criticism that culture permits. Every social system depends on this type of criticism, which, as we have seen historically, is extraordinarily hard to build. The First Amendment protects the press, but the ink wasn’t dry before it was being violated. The ideal of freedom in the First Amendment took hundreds of years to build and takes extraordinary energy to keep. We pride ourselves as lawyers on the principles stated in cases like NYT versus Sullivan. But when the Smithsonian wanted to put up an exhibition on the debate about dropping the nuclear bomb, Congress voted unanimously to ban it. This is the struggle that a free society has to keep free the opportunity to criticize culture, and ideals that are dominant within that culture. This type of criticism has historically been free in our society, it is increasingly controlled. The lesson our lawyers fail to teach is that criticism is effective when it speaks a language that the culture understands. In 1969, Archie Bunker appeared on TV. This was an extraordinary piece of cultural criticism in its time, that spread across mainstream television, and defined an era of reflection on who we had become. That criticism was possible then. Today, too, we have that kind of freedom. (Lessig displays the video clip of Bush and Blair in a soppy love song music video – much laughter!) This is cultural criticism too. It’s not CBS; it’s is made by individuals and spread by technology and a medium that we all respect. This form of criticism teaches us that to criticize requires speech which people understand. This has always been the defining feature of a culture that permits this kind of criticism, a free and sane culture. What makes this freedom possible? In 1969 when Norman Lear had the idea for All in the Family and took it to ABC, he showed them the pilot and they found it too edgy. Lear made a second pilot -even edgier - and brought it back, they told him that he wasn’t getting it. The same thing happened again and ABC said they wouldn’t run it. He did what he was free to do; he took it to CBS who ran it. This ability to take it to a different channel is a story of how you can exercise artistic freedom. This made it possible for the show to become a part of this culture.

We’ve spent years celebrating this democratic technology, that allows people around the world to rip, mix and burn this culture in a way that enables criticism. The conditions under which these freedoms were possible are increasingly changing. This freedom from control that Lear experienced is changing. It is changing through an extraordinary concentration of channels of distribution – 80% of music is distributed through 5 firms. In 1947, 80% of newspapers were independent, today it is less than 20%. The number of foreign films shown has fallen drastically. There has been a radical transformation in the structure of the culture that mainstream America can see. These changes have come not just through the market alone but through government action. The FCC ‘finsyn’ rule controlled content of programming, and was repealed in 1994. It kept a separation between content and conduit. Because of this repeal, in 2002, 75% of prime time television is owned by the networks. The networks who would fire Norman Lear if he tried to make something too edgy; they would own the show. The structure of independence and choice of channels has been changed by changes in the ownership and rules governing television. A critic of the finsyn rule, whom I admire, said that repealing finsyn would put content out of business; all that television seen in people’s homes would be controlled by three people, and that the losers in Congress’s attempt to control it would be the consumers. Jack Valenti, who was that critic, lost that battle. He recognized the consequences of reducing the number of people who could control the distribution channels. We lost the freedom of Norman Lear to say that edgy is just what we need. Now, fewer people own more and control more of our culture than ever before. Never has there been more control over the creation and distribution of culture.

This concentration goes on in the background of a change in the character of copyright law. My favourite example, which I can’t stop repeating, is Mickey Mouse. In 1928, Walt Disney, this hero of mine, developed the character of Mickey Mouse in Steamboat Willy. Steamboat Willy was ripped off explicitly from Steamboat Bill, a character developed by Buster Keaton. This is a kind of creativity, a Walt Disney kind of creativity. We should celebrate this creativity, the ability freely to rip, mix and burn the culture around us, to take from our culture and re-make it, to do to culture today what Walt Disney did to Buster Keaton in 1928. You can only do this if you have a cellphone with EFF’s number programmed in. In 1971, another example, two cartoonmakers were banned from satirizing Mickey Mouse, after federal court action.

Why is there this extremism in protection and the scope of intellectual property rights? Bizarrely, it’s because there is one thing that popular culture has learned from the digital revolution; it’s binary thinking. It’s the idea that it is either all or none, with nothing in between – either a totally free market with zero regulation, or total regulation with no position between the extremes. To question the extreme is to throw yourself on the other side, so we always find ourselves supporting an extreme. To question one extreme is to endorse the other. This must change in our debate. We have to stop selling these subtle ideas, weneed to show people something different between these two extremes. Not the idea free beer, but free speech. Not Britney Spears at zero cost, but the freedom to build, to criticize, to tinker and transform, to “Disnefy.” This is a core part of our freedom, which has been taken away by this extremism.

I spent a lot of time talking and suing, it’s a failed strategy. We’re not a culture that understands much through talking alone, and we can’t depend much on radical transformation through the courts any more. We need to find ways to build and to show people something different from what they imagine the debate is about. People think there are just two kinds of views out there, either all or nothing in copyright protection. But of course there are people who stand in the middle, who think copyright should protect some of their rights, even if not to the extreme lengths of Hollywood. In the beginning of the internet, we had an architecture that gave copyright holders no way to control their copyrights. It was a world as if there was no protection for IP. John Perry Barlow and others celebrated this. The IP holders quickly responded through litigation, legislation and coding to change that architecture, so that in the future we will have an architecture of perfect control. The default will be all content will be perfectly controlled. The problem is that we are solving for the extremes here, moving from one extreme to another. If people want to live in the extremes, let them, who cares. I’ve met people like this, they’re kind of fun. But they’re not all of us – the all control or no control people. Most of us are different from these extremes and live somewhere in the middle, where some rights are reserved. We’ve got to stop this process of defining the problem as if it were only the extremes, so we can define the middle to show people what the world really looks like. That’s the purpose of this nonprofit project called the Creative Commons, which wants to show that most of us are in the middle, to build a layer of reasonable copyright law on top of this insanity. We want to build through this process a balance in the debate based on reasonableness – not through government action but voluntary action. Through the actions of thousands, maybe millions, who will mark their content with these tags and licence their content in a way that says they don’t believe in the extremes. The tags go beyond fair use; they say about the content ‘go ahead and sample me’, ‘share me’, ‘liberate me from my insane author.’ So, if we’re Communists, we’re Jefferson Communists; from the beginning of our tradition, we have had the ideal, set content free. That’s how America was before the extremists succeeded in transforming the rules that govern culture.

This concentration is only getting worse. On June 2nd, Michael Powell will be holding hearings. He believes that the world where six companies own everything is still too restrictive and will try to lift the rules on ownership of media. So we will have not six companies but three companies, which will control how content is expressed through the network world. This change needs to be fought, and it has been fought, by journalists, directors of film studios, and creators. They’ve gone out to say that this change in ownership would be destructive for creators. The NY Times and LA Times have been silent because these organizations are part of the problem. They answer to corporate boards who would themselves benefit from lifting these restrictions. There’s unanimity among creators, but there is silence from the traditional channels, and a corruption of this culture of criticism. Our struggle has got to be to free culture, and creators, artists, musicians, DJs, from structures of control that direct how they express their creativity. Not so they don’t get paid, but so that they aren’t second guessed in their ability to criticize, to free the world from Disney Inc and get to the world of Walt Disney. We don’t get there by talking, not by clever legal arguments, but by doing something to express it passionately. This is a time that the culture needs to criticize itself, especially when we are criticized around the world. In my brief opportunity to do something about this, Eldred v. Ashcroft at the Supreme Court, I was asked a question by Justice Kennedy, who said ‘Counsel, I don’t notice any harm to speech that’s been caused by the changes that you are talking about’. I remember having a flash of recognition that there were two ways to answer this. My response in clever lawyer mode was to say that this is not an argument about the effect but about limits on Congress’ power. I invoked a long line of authority, that the conservatives on that court had articulated, that supported our case. But at the moment I said this, I had this other flash, which was ‘these justices need to get this as passion and not argument, to feel this.’ And as I finished the sentence I wanted to say ‘Justice Kennedy, it’s obvious how this restricts speech. This extension to protect just 2% of creative work for 20 more years of corporate returns locks up everything else. The ability of others to cultivate a culture is silenced’ That argument rings in my head every morning that I get up This strategy of just speaking to them in the traditional lawyerly way didn’t motivate them. They didn’t get it. Not just I have failed to make these issues of free culture salient. Salient to a broad range of Americans who need to see that we come from a tradition where culture was free, and we need a tradition where we free this culture again so that these extremes of total or zero control don’t narrow us into a box where the creativity and passion that defined our past are lost. We need steps to free culture now, through your work in expressing the value of free culture, and showing instances of free culture that allow us to reclaim a tradition that we should be proud of, a tradition of resisting control.

Q&A

Nick Gillespie (editor of Reason magazine) – I wish Eldred v Ashcroft had gone your way of course, but I have trouble when you look back to a golden age of Archie Bunker, and say that we’re deprived in contrast. I can’t see today’s proliferation of different viewpoints and media outlets as having less range of voices and perspectives than that era. Does anyone think that there is less diverse TV now than there was then? 10 years ago, our ability to collate and compile different information about what was going on in the Persian gulfwas nothing compared to now. We need to distinguish questions about who owns the means of production from content, but while today things aren’t perfect but they’re pretty good.

Lessig – I just came from a conference of film makers in St. Louis who say the range of opportunities to get into the mainstream distribution market are reduced. There are of course other channels, that are more diverse. The question is how to get into the channels that 80% of Americans see all the time. If you look at what has happened, empirically not ideologically, you see a homogenization of what constitutes mainstream culture.

Gillespie – there are more opportunities to exit mainstream culture.

Lessig – Reason magazine is a strongly libertarian magazine and strongly supportive of limits on copyright. To the extent that so much culture remains under the control of a small number of actors, that is a limitation on what I call free content.

Audience (community media person) – We’ve been trying to get this across. Michael Powell has said he doesn’t care about our studies, we should just throw away the rules. He isn’t interested in creator’s views. The FCC’s not accountable to voters. Do you have advice on how to make impact on this kind of mindset?

Lessig – there’s no persuading Michael Powell on this issue. Period. I don’t mean to criticize him in general, he’s exactly right on where spectrum policy should go. On that issue, freeing spectrum licencing is a good check on this. You’re not going to change Michael Powell. The only possible change is through Congress, to which the FCC is ultimately responsible. The hard question is whether Congress can do anything, with the views of the DC Circuit Court and the Supreme Court on the First Amendment, and on restricting Congress’ role. There is some rumbling. The only way to resist that, is to resist Reason magazine’s default attitude on that – the attitude of ‘show me the effect, show me how we produce a less diverse culture for the bulk of Americans’. Only if you can show that, will it make any sense to talk about media regulation consistent with the First Amendment. Most people don’t really care or seem not to think money affects the content of programming such as the news. Getting shows talking about how CNN is great on channels owned by sister companies.

Audience – I am pessimistic, I think that any legal victories will be neutralized by contractual arrangements. Most artists and inventors are bound by contractual agreements.It seems that the Creative Commons is trying to use contract law to benefit artists. What is your opinion on how to overcome the contractual realities?

Lessig – It’s a huge problem. 200 hundred years of Supreme Court authority has weakened the constitutional protection for artists, who find themselves having to sign their rights away. I don’t think that we can tackle this directly. We need to give artists another way to make money that don’t depend on the old way of doing business and we have to stop Congress of using law to reinforce the last century’s business model. In the last five years, the Congress has used law to say that the way that the music industry made money in the 1990’s, is the way that it must work for the next 150 years. That insanity is the core problem here, and not contract, and it’s the thing we must tackle first.

Audience (Mike Godwin) – In response to Nick’s question, you said that music and movies are less consolidated than tv. There has been more diversity, because people have been looking for ways to make content more edgy, even as media has consolidated. You haven’t commented on efforts to re-architect various open architectures on the internet so far, which have only increased in intensity since you wrote your first book.

Lessig – On your comment, my bias, like Reason magazine, was to believe that ownership didn’t matter, and I agree that with lots of channels you can watch C-Span and BBC. This may be sour grapes on the part of creators, but people like Leonard Hill, who has been creating forever, report a big change in the opportunities available to them.

Godwin – It may be that they’re being forced to be creative.

(inaudible comment from audience member)

Lessig – On the second part - you’re right – the fears that we talked about when I first published Code, was that they would use technology to get more control over the spread of content than copyright law would give them. That’s what has happened, and, what’s worse, law backs it up. We see no effective limitations on this, either by courts or by legislatures. That’s another reason why we have to be worried about concentration of control. We have longer duration, broader scope, broader reach, stronger protection, and concentration in the industry. This has all produced a more restricted free culture. I don’t know how new this is that we’re talking about it. I went back to the 1993 CFP proceedings, and found one discussion in CFP of copyright issues, something that you said. When you said it, there was a puzzled look from the audience, as if copyright law had made a brief appearance and disappeared. We’re in a world where what you tried to get people to recognize as a danger, has become a core source of the danger. But my message is that talking hasn’t done anything. We’ve been writing books, but mainstream people don’t see the issue yet. They see questioning copyright as endorsing theft from Britney Spears.

Audience – There is a broader problem; the naïve anti-regulatory libertarian attitude that has taken hold in our political discourse since 1980. Because of this attitude, the only time that regulation is engaged in is when moneyed interests grab hold of the regulatory process and use it for their own ends, as in copyright. Do you agree with this way of looking at this, and are you interested in using your intellectual leadership to attack this broader discourse in our culture of libertarianism and anti-regulatory views.

Lessig – I did think about doing this once, about writing books saying that if you focus too much on this anti-regulatory strategy, you will be missing how different kinds of regulation threaten freedoms. More and more, I think that this is an unhelpful debate. Libertarians and anti-libertarians, both see that this has gone too far, and I want to capture this moment of recognition. In Eldred, the happiest moment for me was that we had not only Reason, but Phyllis Schafly, Milton Friedman, Ronald Coase saying that this had gone too far. That’s not getting them to see that libertarianism is wrong. We need to build a coalition that cuts across left-right boundaries. It is not about conservative versus liberal, about libertarians versus statists; it’s about a balance in the content of intellectual property, and a set of deeper values that we all agree on.

Audience – Couldn’t you form a coalition with other people if you went the other way?

Lessig – If you frame this like the 1960’s, like the traditional left-right question, you’ve lost. If you frame it like that, people won’t listen any more. It’s not just about that, it’s not just Ralph Nader versus Milton Friedman. It’s about why both Microsoft and Intel are both more interested in open access to architectures than they were ten years ago. I’m with you in spirit, I’ve gotten into a lot of trouble for it, but five years down the road, it’s not the best strategy.

Audience – coalitions are great. We need coalitions that speak to people. So many people love mainstream TV and Britney Spears, and the companies that sell them? Can you talk to them about their insecurity about technology and the accelerating society? Can we say that we need some of these criticisms, especially at a time of accelerating change?

Lessig – I agree that there are these anxieties. Unfortunately, in the shadow of 9/11, I’m not sure how to speak to them. It’s exactly the time that we should be doing this, using the expertise of the people in this room. Building systems that respect privacy, even if we do recognize patterns of behavior that have to be monitored. If we raise the level of discourse just one step, we could avoid the architectures that are being created now, which are much more pessimistic and dark than I thought when I wrote Code. But it is almost impossible to get the level of discourse up there. It has been so hard to get discourse at a high level with regard to easy questions like the IP questions; I’m not sure if I can do it with regard to the hard ones.

Stephanie Perrin – I was reluctant to come to the microphone, because so many Europeans and foreigners here have gone through the experience that Canada went through. Have you looked at this problem abroad? Jack Valenti went around the world in 1980’s and 1990’s making sure that there was access for US media in other countries. There were wars over teensie little screen quotas in Canada and Europe. The strategies that other people came up with to get access to their own media, books etc have actually worked. These strategies are useful to look at.

Lessig – Looking across the world, we see some of the greatest and some of the worst things. You’ve talked about some of the great things. On IP, people abroad adopt policy changes that will have no power in changing things. Japan’s education ministry is pushing change in the copyright law that would protect old movies. Why is the education ministry interested in that? Mexico is considering life plus 100 years terms for copyright. This will decrease access to people’s own culture, while Hollywood is cheaper and available. It seems to be such an easy case, but there is such a deficit of political action. I just don’t get why people are doing this. People should resist American extremism, just for this purpose. Sometimes they do, and sometimes they don’t; if you can teach us how to get more of it, that would be great.

Update - I’ve gone through Lessig’s speech again, using the MP3 available at CFP, and made various tweaks/expansions.

Posted by Henry at April 5, 2003 01:28 AM | TrackBack