The following transcript has been lightly edited for readability.
Spanish translation available here (Thanks, Jose!)
Lawrence Lessig on Remix Culture
Free Culture Conference 2008 Berkeley
EMCEE: I think the first thing on everyone’s mind that we want to hear from Professor Lessig is the book. So let’s start there, give us the blub.
Sure, so first, I’m not going to answer your question, because I’m not here to sell books. But I could tell you a little bit about the book, but I want to first start by saying how extraordinary it is to see this event. When Nelson, and the kids at Swarthmore, hatched the idea of launching freeculture.org, it was in my view the most important thing that could happen from this movement. There are great organizations in this group like EFF, Public Knowledge, Creative Commons, Free Software Foundation, those are extremely important, but the only way we win is if there’s a Students for Free Culture movement. To come here and to see this enormous number of people here to talk about these issues, is the most rewarding thing I think I have ever felt in the history of this, and I am grateful to you for that. Thank you.
So, there are basically three ideas in the book, and these are familiar to most of you, which is why this is kind of boring and I’ll say it very quickly. The first idea is to get people to recognize how culture is returning to something great that culture always was except for the weird 20th century, and that’s what I call a “rewrite culture”. I take this idea from something John Philip Sousa said when he came to Washington in 1906 to testify about what he called the “talking machines”. He said in this testimony:
When I was a boy, in front of every house in the summer evenings you’d find the young people together singing the songs of the day or the old songs. Today you hear these infernal machines going night and day. We will not have a vocal chord left; the vocal chords will be eliminated by a process of evolution as was the tail of man when he came from the ape.
Now the vision Sousa had of this professional musician is that amateurism is extraordinarily important to culture. And his concern is that the vocal chords, the ability to be amateur creators, will disappear, because we’ll become – what he didn’t know we would become – couch potatoes, passive recipients of culture, not creating it, not doing things with it. And that was, in many ways, the 20th Century. In the 20th Century, there were extremely important kinds of culture, like film or recorded music, that most people couldn’t have any real connection to. You couldn’t make a great film, you couldn’t make a great record, because the technology was so far removed. And so we became passive relative to this culture.
But the 21st Century is a century when the practice of amateurs creating and getting together and singing – but now doing it on YouTube, or on Facebook, or on MySpace – will recreate this rewrite culture from the past, and we will go back to a place where people are once again just as empowered to create as the professionals. Think about it, in 1906 all the professional creators of the time like Sousa and his band and pianist and people who would perform with violins, there were also amateurs who could do all of those things, and that’s where we are today again. It’s a kind of cultural literacy. You know, if you’re 20 years old and you can’t make a film, there’s something wrong with you, right? I mean if you can’t remix using digital technology, you’ve been somehow deprived in your education, and what we need to recognize is that this generation is radically different from mine. My generation was kind of embarrassed by the idea of creating, but your generation and the generation that will come after you is a generation that celebrates creating, and that’s something that the law’s got to begin to encourage. That’s idea one.
Idea two is also optimistic. It’s kind of a weird book because it’s optimistic in a lot of ways. Weird for me.
EMCEE: You always say you’re such a pessimist.
I know but I’m not anymore. That’s why I had to get out of this movement, cause I had to find a new movement where I could still be really pessimistic. [Pointing to “Change Congress” T-shirt] That’s it.
So the second idea in the book is about what I want to call a hybrid. If you think about a commercial economy, like a grocery store where you go in and you buy things, and a sharing economy, Wikipedia where people create for the love of creating, not because they’re being paid – if you started paying editors for Wikipedia it’d probably be worse than it is right now – there’s an interesting new economy that’s increasingly defining the internet, what I call a hybrid. A hybrid is either a commercial economy leveraging a sharing economy to create value for commercial purposes. So think of Flickr; Flickr is a commercial company, but it’s building its commercial value out of sharing activities from people using the platform. Or it can be the other way around, it can be a sharing economy that realizes the only way it can survive is if it begins to bring in commercial revenue, so it tries to leverage a commercial economy inside it. We don’t have any good examples of that now, but organizations like NVIDIA (?) are trying to push that.
So the hybrid, once you see this, defines every interesting new business. Amazon is in many ways a hybrid because all the value of it comes from beyond just selling books, people voluntarily are giving their ideas and their reviews to Amazon, and that defines how you understand what the products are on Amazon. Second Life, same thing. Yelp, same thing. And increasingly businesses are realizing they need to figure out how to encourage the hybrid economy in a way that makes everybody happy.
Now the paradigm “hybrid”, 20 years ago, is the free software movement and the GNU/Linux operating system which was embraced by commercial entities and willingly given over by the sharing culture that produced it because they realized we needed commercial entities to support it if it was going to succeed. And I think what we’re seeing now is the same dynamic happening in the context of culture. Now, there will be radically different arguments about how this gets done. So think of two kinds of hybrids: one you call the Darth Vader hybrid. George Lucas has a remix site for Star Wars. You can go and get clips from the Star Wars films and upload your music and remix it. So basically they’ve got this 30 year old franchise, they’re trying to make it interesting again, so they’re giving kids the opportunity to remix the stuff. But if you read the terms of service, George Lucas owns all the remix rights, everything you create he owns. If you upload a song to his site, he has a perpetual worldwide free license to sell that song and make all the money he wants without giving you a dime. It’s kind of share-cropping in the digital age.
So that’s one kind of hybrid. My view is that that kind of hybrid is going to die, people are going to increasingly going to say – excuse me if there’s anybody that this in inappropriate for – fuck you to that kind of hybrid. That’s the appropriate response. But then there are other hybrids, think about Nine Inch Nails or Girl Talk, who are releasing content, explicitly encouraging people to do stuff with it, explicitly licensing them to do it with it, and licensing it in a way that guarantees the creators own the rights. They don’t own Girl Talk stuff, they don’t own Nine Inch Nails stuff, but they own their remix. They are creators, that’s the right of creators, and that kind of hybrid relationship I hope will fight to make sure it defines the future. So that’s idea two.
Idea three is really what inspired me to write the book, so one thing that you’ll be surprised at, I imagine, is that the book is dedicated to two people. One is an extraordinary scholar, a man named Lyman Ray Patterson, who in the 1960’s was writing all the stuff that we wrote in the 1990’s and 2000’s and didn’t know that he had written because we were bad scholars. He was a fantastic, extraordinary copyright scholar in the 1960’s writing about how this whole movement of extremism in copyright was going to destroy extraordinarily important parts of culture. So he’s one of the people I dedicated the book to.
I also dedicate the book to Jack Valenti, who as you know is the big president of the Motion Picture Association of America, and I dedicate it to him, because he, like Lyman Ray Patterson had an important role in teaching me about these issues. Lyman Ray Patterson’s role you understand, because that’s all the stuff I’ve talked about before, that copyright needs to be balanced. Valenti’s responsibility is a little bit different. Valenti, when I debated him first at Harvard, I was up there blathering on about the framers of the constitution and innovation and the right to create the right incentives, and all that sort of bullshit, and Valenti stood up and said, “You know, I went to Stanford, and I stood up in front of the kids at Stanford, and I said ‘How many of you download music for free?’, and 90% of the audience raised their hand.” Valenti said to them, “How can you steal this content?” And they said, “Well everybody’s doing it.” Valenti said at this debate, “How are we going to raise a generation to respect the law when they’re living their life against the law?” At the time he said this, I thought this is a ridiculous question, who cares about that? Let’s focus on incentives and the framers of the constitution and all that sort of stuff.
But after I published Free Culture, I had my first child. He’s now five, and I have a second child too. Valenti’s question increasingly disturbs me, because the thing I think is worse about this whole copyright war stuff, what Valenti used to call his own “terrorist war” (where apparently you guys are the terrorists), the thing that I hate most about this is that it does produce this generation that just lives life against the law, and they think to themselves, “What the hell? The law’s an idiot, and I’m just going to ignore it.” If they ignore it here, how many other places do they think they have to ignore it?
Now Valenti’s solution to this problem of course was to wage ever more effective war against the enemy, like find more ways to expel kids from college if they’re sharing music illegally or sue grandmas for downloading stuff on their computer. Let’s really ramp up the war to stamp out the bad behavior. And of course I think that’s an idiotic response to this issue. I think what we need to do is to sue for peace, to find a way to achieve the objectives of copyright, following the ideas of the EFF, to have a voluntary collective license, where the idea is of Terry Fisher to have a change in the copyright system, where we have revenues collected to pay out to artists on the basis of the popularity of their work, whatever. We need to move to a system where ordinary sensible, totally obvious behavior by people is not criminal. Because its being criminal is corrosive and destructive of extraordinarily important values in our culture, and there’s no reason the soul of a generation should be sacrificed so that Hollywood’s profits can be preserved. Because if we had done a decade ago what many people were talking about a decade ago, if we had adopted some of these compulsory licensing schemes of altering collective licensing schemes, the last ten years would have produced more money for artists – they’ve got nothing from peer-to-peer file-sharing – but they would have got something from this. It would have produced more innovation in businesses, it wouldn’t have been just the one or two Apples of the world who were able to strike deals with the record labels, it would have been anybody that would have been able to engage in this stuff. So more money for artists, more money for business, better for consumers, and a generation that wouldn’t have been raised thinking that breaking the law was the sort of thing they could do.
Now that’s a kind of boring father/law professor like thing that motivated me to write this book, but I think it’s extraordinarily important that you begin to defend your right to live life not against the law. Because what you want to do with digital technology should not be against the law. We just need to motivate a generation to help us change the law so that it’s not. So those are the three ideas in the book.
EMCEE: Great, thank you. So, I was there when you said you’re kind of moving on from this party. Every time somebody hears you’re writing a book remotely related to copyright, people are going to say, “Hey what about Change Congress?” How are your resolving this conflict between promoting Remix and working on Change Congress?
Right, so, I made this announcement in June of 2007, and this book was basically finished in June of 2007, it’s just the nature of the publishing industry that it’s now coming out. So this book is the end thinking of the work that I’ve done in space, and I’m happy to come out and talk about it because actually the movement that all the organizations out there and you guys have helped spur has much more traction and excitement around it than political reform does right now. So I can show up and have this number of people want to talk about this issue. It’s harder to get that in Congress right now. So I’m happy to be here and talk about it.
I’m still on the board of Creative Commons, which is still extraordinarily important to me. And I’m working very hard to continue to make it successful although I been very proud of how successful it’s been, even though I’ve stepped away as CEO and Chairman of the Board. Joey Ito is CEO, and Jimmy Wales is Chairman, and they’ve been doing a fantastic job in continuing it. You should look for an extraordinarily exciting announcement on October 15th about a new generation of Creative Commons integration, which will be fantastic. So that continues to be an important part of my life.
But the academic work and the activism work that I want to do is all around trying to motivate a generation of people to think about fundamental reform of Congress. I don’t know if you saw, but Rasmussen did a poll in July, and one in August, and found that 9% of the American public believe that Congress is doing a good or an excellent job. 9% – this is the first time in history that number has been single digit. More people favored the British Crown at the Revolution than are in favor of Congress today. But we don’t focus on the fact, that this – the most important institution in our democracy – is a bankrupt institution that has none of the credible support of the people that it needs to function.
It won’t be changed this week, but this business model has been a 10 year business from the very beginning. It’s a process that’s going to take a long time, and there are two ways it can happen. One is a happy reform story where we get a number of representatives and a whole bunch of challengers to commit to the principles of Change Congress, and then implement change. I think there’s a 20% chance that that’s the future. Then there’s another story which is that we try very hard to get it to happen, and there are some pretty dramatic moments of failure, and that motivates people to think about how this has to be changed from the outside. And already there are these constitutional convention people clamoring around Change Congress trying to get us to push for a constitutional convention. It’s way too early to talk about stuff like that. But the point is, whether it’s inside or outside, there’s no choice here; it just has to change.
And so we started a campaign this cycle basically the charge of which is to get your representative to take a stand. Just get your representative to say where he or she is on these issues. So we sent a letter out to every single representative and gave them a code where they could go to our site and say here’s where I stand. Most of them didn’t do anything. Then we launched a pester campaign, where we gave people tools to go out and start pestering them, you know, calling them or emailing them or writing them letters. And we right now have about a third of the candidates and congressman who have taken a stand. We’ve got five members of Congress who have now joined Change Congress as members, and it’s nicely balanced – there are 3 democrats and 2 republicans. I’m hoping by the end of this cycle we’ll have about 10. If we have 10 members, we’ll probably have 2 or 3 more who come in as challengers. So optimistically in this next Congress we’ll have 15 members. The way Congress works, if you have 40 members who are in a coalition, you can do almost anything. So, I think after 2 or 3 cycles of this, we can optimistically get to the point where we can make some pretty effective change inside Congress.
EMCEE: One thing I like about Change Congress is that you guys came up with an inventive way to start pushing and pestering. Do you want to talk about the 9 cents?
Right, so when the 9% idea came out, when in fact 9% of us supported Congress as doing a good or favorable job, we launched this campaign where every single contribution we made to a political candidate, whatever it’s going to be should be plus 9 cents, so if you want to give somebody $10, you give $10.09. So increasingly they begin to look at these 9 cents coming in and say what’s this about? And that creates a kind of grassroots recognition of the source of this problem.
EMCEE: One of the things I’m interested in, in your writing, particularly on your blog, is this conflict between this desire to have information for free and transparent, much in the way that Creative Commons works, and Change Congress works, and this can sometimes be in conflict with our intuitions of privacy. I was wondering if you wanted to talk about that in light of the recent blog posts you’ve had about TSA travel. I think a lot of people are curious about your thoughts on privacy because every day we find ourselves pushing the boundary and redefining the lines between what’s public and private information. And it’s a conflict I feel very close to being on the side of wanting more information.
Yeah, the privacy issue is extraordinarily hard for me. Because I think there’s a basic hole in the architecture of the internet right now. And that hole is that we don’t have an identity layer. What would that mean? It doesn’t mean that you can identify anybody at any time. What it means is that you have an easy way to create persona that get some kind of credentialed status that exists across domains, that is enough for whatever purpose that domain might have; that doesn’t require you to be fully identifying your social security number and your mother’s maiden name every time you sign up to some particular kind of site.
Now, there are great things trying to provide this. I think OpenID eventually might get to a place where it can provide this infrastructure, and if anything can do it, I think it should be OpenID. I think that the IdentityGang is developing a set of protocols for how this might be implemented that doesn’t require any central place to be controlling everything, but you choose who’s going to be managing certain aspects of your identity. I think the thing to recognize is that if we could be more intelligent about this architecture, while on the one hand it might facilitate the ability of our government to track down somebody violating the law better than it is right now, although I’m not sure that’s true – I think it’s pretty easy to track people down right now – the other thing to see is that it also enables people to protect their privacy much more effectively.
The system we’ve got right now is fundamentally broken, because, though there’s no requirement to show anything, basically if you want to have access to anything, you have to showing everything. And you have governments implementing identity protocols that basically say you’ve got a card that has all the information about you there accessible to anybody who wants to validate who you say you are. All of these architectures are just idiotic from the standpoint of how to protect privacy. But I think one of the reasons why we’re not making any progress is that, as far as privacy, I kind of think of myself as being part of this cabal of privacy nuts who are anxious to make any deal to give anything, because they don’t trust the government at all. And frankly, when the government violates the law, or gets companies to violate the law and then passes immunity statutes to immunize them, I don’t know why we should trust them. There’s no reason why anybody should be trusted in a world where there is no consequence for violating the rules. But I don’t see how we’re going to get to that place until we actually figure out an identity infrastructure that facilitates this more flexible identity.
EMCEE: Still on privacy, one writer that I got turned onto by you was David Brin, and his Transparency Society, I was wondering if you could explain how he might have influenced your thoughts on Change Congress and the future of democracy and how we look at privacy from within government.
I don’t know that Brin has had an effect. Brin’s great contribution here was actually not something I agree with, I think, but his great contribution was to get people to see that there was no way to stop the publicity that was going to be around everybody and everything they were doing, that technology was going to make it so that everything could be identified. And he wanted to argue that we should just give up on that and just learn to live life out in the open, as kind of a Charlie Nesson conception of what the world of privacy should look like. I don’t agree that we should give up like that. I agree with him that we’re not going to be able to stop the technology, but I do think we’re going to be able to effectively try to limit what people do with the data that they gather in this respect, and we ought to be doing that more. But I think there are certain domains where living in the open is what people ought to do. So in the Congress domain, I agree with you, this is exactly the norm that ought to govern what happens in Congress. Part of what Change Congress tries to push is more transparency, it’s the part that has been influenced by the Sunlight Foundation and MAPLight, but more transparency, because I think transparency will be very effective in getting sufficient reform.
EMCEE: Shifting back to the setting we’re in, where the large majority of our audience is students. One of the things that I think we’re interested in as a movement and in this conference is defining what sustainability means for us. Maybe I’m asking your opinion here, but 5 years from now, 10 years from now, Students for Free Culture is what? I’m curious from your perspective what you think that would be.
Well, I’ll tell you what I hope, and I don’t mean to say this is what you should do. Nelson helped launch this in the very beginning, I said it was very important that I not be part of the organization, because I didn’t want anybody to be unclear about the fact that this was an organization totally independent from anything that our world had done, and I don’t want to cross that line here.
But here’s what I hope: I hope Students for Free Culture starts picking some fights that teach the lesson that we want to teach. So I think the DRM campaign that was run, you know, where you start picketing Tower Records and passing out anti-DRM leaflets in conjunction with the Free Software Foundation, was fantastic. I think it’s that kind of fight that ought to happen. I think the obvious, low-hanging-fruit fight for the Students for Free Culture movement right now is to start having sit-ins in universities where they don’t adopt Open Access publishing rules. It’s ridiculous that scholars publish articles in journals that then charge 5, 10, 15 thousand dollars for people around the world to get access to it. I mean it’s no problem for Stanford or for Berkeley or for Harvard, but the developing world cannot get access to this stuff easily because of these extraordinarily idiotic 20th Century restrictions on access to knowledge. And the point is if you start having fights about stuff like that, people listen to the fight and see it as not about you trying to get something for free for yourself, cause you already have this stuff, the fee is already built into the price you pay as being a student. But they begin to see why the movement is about a set of principles that are bigger than just “I want to get music for free.”
So what I hope is that you begin to pick these fights, and organize a rally, and as people have discovered, especially in this place, Berkeley, it’s a lot of fun to organize fights around this. There’s a lot of parties that are involved. And that’s good for a movement. Fighting and parties – those things go well together, and they bring out the best in all of us, and I think you need more of them. This movement needs to be 5,000 people in a room in 5 years, and it needs to be 100 chapters around the world that are saying “These are the ideals that we’re fighting for,” and start embarrassing people who should know better. Professors are the perfect class of people to embarrass about this issue, because they’re wimps, they’ll cave quickly. And they have no good reason, they have no good justification for what they’re doing. And so you need to pick those battles. I would hope you have a strategic warfare division – I don’t know if you’re in charge of something like that – but you begin to decide where to launch these wars so that you get attention that focuses people on the right issues, and distinguishes this movement from the way it’s perceived in the world, which is that you guys just want to steal things to get things for free.
Today the Wallstreet Journal has an excerpt of 2,000 words from this book Remix. I was very happy they wanted to publish it. But the title, which I had no control over at all, the title is “In Defense of Piracy.” That’s the way we are perceived; we are perceived as people who want to justify stealing stuff, when that’s not at all what this movement is about. Think about the Pirate Party, which in Europe especially is doing a fantastic job of getting people to rethink this issue. I think unfortunately in America, most Americans don’t see the subtlety in the name, and so they’re confused, they think this is just about “How do I get something for free for me?” We’ve got to show how this is not about “for me”, it’s about “for culture”; it’s for something much more important than cheap music.
EMCEE: So before we open it up to questions, in terms of talking about principles and strategy, I think one thing that we’re confronted with frequently, especially in the shadow of the Free Software movement is the idea of drawing a line in the sand and having a coherent definition of what is Free Culture, and what isn’t Free Culture. Personally, I’m more of a big umbrella type of person. I’m interested in having a conversation about say the failure of Fair Use to distinguish between something being fair or not, and Orphaned Works, for example, as all being a part of the Free Culture movement, but I’m curious about what your thoughts are on the idea of lines in the sand in the Commons, as it were.
Well, I think we need lines in the sand; I think we need strong statements of principle; I think we need to be able to say “This is what’s right, and this is what’s not right.” What I don’t think we need is particular people who take it on themselves to say “I’m going to tell you what Free Culture is and what Free Culture isn’t.” I think we need that to come out of movements like this. My own attitude about certain questions as they come along is that I have my view, and I want to hear what other people think about this view, and I’m quite open to the idea that my view turns out to be wrong about these issues.
But I think what has to happen is there needs to be a grassroots recognition that we have to come to identify the principles that will guide us. I called my book Free Culture because I believe in the kind of inspiration that Richard Stallman brought to the Free Software movement. I do think it’s about values; it’s about what’s right and what’s wrong. And I do support the idea of getting people to recognize not how this is a nice compromise with business; it’s about defining what’s important for a culture. So that’s why I believe in the Free Culture movement, not in an Open Culture movement, whatever that would be. But I don’t think anybody is as entitled in this movement as Richard was in the Free Software movement to say what the rules are. None of us has that right. And so unfortunately we don’t have the kind of Moses figure, or the Savior to guide us. What we have is a bunch of people who are trying to figure out what the right answer is. And what we need to be is tolerant of that debate. Not tolerant of people who don’t want to stand up for principle –we don’t need that in the movement – but tolerant of the recognition that there are different ways to look at these issues, and let’s have a conversation about how to get to the right answer.
Sra: There was a Q&A following this session, but unfortunately my camera was out of recording space. Sorry :(
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