Monday, October 27, 2008

REMIX: Lessig

I have just finished reading the book REMIX by Lawrence Lessig. This is thought to be his last book on intellectual property law/internet/culture issues.

Lessig introduces the text by considering the war on piracy and the collateral damage that is evident from the strategies of the major players in the content industry. While endorsing the existence of copyright law he argues for essential changes to take place to ensure that balance is achieved and future generations are not criminalised for what they perceive to be reasonable uses of culture. He urges us to step back and to assess the impact of policies and to take account of the both the need for, and likelihood of success, rather than assuming that legislative constraints are the most appropriate solution.

Lessig analyses culture as being either RO (read only) or RW (read write). He begins by examining cultures of the past with the oral tradition of singing and community interaction with culture prior to the advent of modern technology. He observes that developments such as the phonogram, player piano, radio, cassettes, CDs, televisions, VCRs, DVDs etc changed the experience of culture from RW to RO. In doing so there was a loss of tradition, amateurism, creativity and technique. He states that new technologies promise to enable society to return to a RW culture.

He explains that it is not a matter of selecting between two extremes – the internet vs hollywood; RW vs RO; the future vs the past, gains vs losses – but rather that both RO and RW culture can be extended by new technologies and that businesses which incorporate both are likely to emerge. He states that it should not be a matter of preserving RO culture at the expense of RW culture but that all should be encouraged to develop.

He acknowledges that there is part of culture that is created by professionals that we simply consume. Technology has enabled industries to develop with an emphasis on professional creation – the limitations in copying using analogue technology and support from the law prevented individuals from creating and reproducing recorded works. Now, with the advent of digital technology, any person can reproduce culture – it is not impossible but it is illegal.

He refers to the conditions that have always been present for writing – that quoting with citation has always been allowed and that there is an expectation of being able to lend texts from libraries - and argues that all culture will be ‘bookified’ this century. That is to say that we will develop norms around all forms of culture similar to those that have always been present for text.

While RO culture demands respect for creations, provides authority and integrity to culture and is an important part of ensuring the spread of knowledge; RW culture offers itself as a draft, invites a response and empowers as much as it educates and entertains.

RW and in particular remix culture is seen as a form of collage around which communities are developed and which enhances learning and education through participation. Creators are both professionals and amateurs. He argues that RW is an ecosystem that must have conditions which enable it to evolve and develop. Copyright law supports the practices of RO culture and opposes practices of RW culture.

He reflects on what may have been had the content industry accepted and adapted to the introduction of peer to peer file sharing and questions whether the next ten years should be focused on the war on piracy.

Lessig then goes on to describe three economies – the commercial, the sharing and the hybrid. The tangible value exchanged in the commercial economy is money. It is a simple way of spreading wealth and critical to the internet. Examples of internet based commercial economies include Netflix, Amazon and Google with three central features being the long tail, recommendation systems, and lego-ized development.

By contrast, the intangible value exchanged in a sharing economy is not money, indeed money is seen as poisonous to this economy. Rather it depends on the development of social relations in which participation is a key element. Lessig explains that there are two types of sharing cultures – the thin and the thick.

A thin sharing culture is driven by personal gain where motivations for self gain motivate contributions – examples include Skype and AOL’s IM Network.

A thick sharing culture whilst also depending on norms of sharing and cooperation are driven by a motivation to help others – examples include Wikipedia, GNU/Linux, Project Gutenberg, the Distributed Proof Readers Project, Distributed Computing Projects such as SETI@Home, the Internet Archive, the Mars Mapping Project, the Open Directory Project and Open Source Food.

Sharing cultures take advantage of tasks that users would do anyway and are enhanced in the digital environment because of the non rivalrous nature of intangibles. Different technologies enable new forms of participation and sharing and he suggests are likely to become part of the core of the internet’s ecosystem rather than reside at the periphery.

Hybrid economies combine both commercial and sharing attributes. Free Software and in particular Red Hat Linux are specific examples – the community of programmers are respected, they are given responsibility and the sense that they are part of something meaningful – this in turn enables commercial benefits to be derived and combined with a sharing culture. Lessig lists three main forms of hybrid successes, those that create community spaces such as Dogster, Craigslist, Flickr and YouTube; those which create collaborative spaces such as Politech, Slashdot,, Usenet, Yahoo! Answers, Wikia and fan sites; and those which create communities such as Second Life. These forums are designed with community in mind and must balance competing priorities and expectations to succeed.

Hybrid economies produce both economic and social value with the spill-over of information having both public and private benefits. Some of the keys to long term sustainability of hybrids include not being overly focused on commercial priorities by aiming to achieve moderate rather than maximum profits, exercising only moderate control with participants being empowered to make some decisions, and transparency of motives. He refers to the transition of CCDB to Gracenotes as one example where greater transparency was required. Feelings of betrayal and a backlash from participants are inevitable when changes are made without consultation or consideration.

He states that one very damaging practice certain to undermine the success of a hybrid is share cropping. He refers to the EULAs of remix competitions where by participant's copyrights are automatically made the property of the competition organisers as one example of this practice.

Lessig states that parallel economies are possible and that creators should be free to move from one to the other as it suits them. He also acknowledges that the existence of hybrid economies which allow some legal uses of creative works as being fundamental to the decriminalisation of the cultural practices of young people.

To ensure a vibrant future for RO culture, RW culture and hybrids Lessig contends that there must be significant changes to the copyright system with far less emphasis on using the legal system to solve problems. At present the default position of copyright is set to ‘No’ but technology and the creativity of youth demand more. While he suggests that Creative Commons goes someway to addressing the issues what is really needed is a complete overhaul of the copyright system.

Lessig argues that there are five central changes which need to be made to Copyright Law. The first is that amateur production needs to be deregulated – non commercial uses should be free use not fair use. There also needs to be clear title to creative works which can only be achieved through a registration system with a renewal process imposed after a short automatic term. Copyright law must also be made simpler with legislation, in addition to fair use, specifying that some uses are not within its scope. He also suggests that the law must be rewritten to focus on uses (such as public distribution) rather than be determined on the notion of copies. Finally he advances that Congress should move to decriminalise file sharing by allowing non commercial sharing with additional taxes or by imposing a blanket licensing procedure.

Without these changes Lessig fears a destructive impact on the rule and respect for law by future generations.

This was a very enjoyable book, it is well written, easy to read and at times quite funny. For my purposes I found it a little too descriptive and thought there could have been more analysis.

The recommendations to change copyright law are not new and could have been more directly integrated with his observations with more attention given to why they are needed and what impact these changes would have on the ecosystem. The coexistence of these two forms of culture (RO/RW) have been the impetus for much of the conflict in this area and there is scope for a much more detailed discussion as to how these can survive and thrive alongside each other.

He uses the recording industry as an example of a hybrid economy with specific reference to the loss of income to major record labels as an illustration of the ability of the industry to embrace both commercial and sharing culture. Whilst I would argue that the music industry (which is wider than just the major record labels) can, and is, a hybrid economy, I would not have referred to these statistics as an example.

There was never any deliberate effort or desire on the part of the labels to embrace this strategy rather it was imposed upon them. They took active steps to prevent this from happening and only in recent times have accepted through the development of avenues such as MySpace Music and changes to Yahoo's search engine results, that complete control is not necessary. The definition of a business within a hybrid economy, and indeed the other examples he uses, refer to businesses willing to give something away in order to gain, rather than what is taken from them. The loss of income to labels while not conclusively or solely due to file sharing, could well be interpreted as an indicator of their inability to be embrace a hybrid model.

Lessig could have also paid more attention to the role of the Corporations Law and how the fiduciary duties of directors and company executives impact on the choices that are made and the obligations to prioritise profit over community.

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