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Larry Lessig in the lion's den

Net guru takes on the authors: Love is just another lawsuit

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CISAC Professor Lawrence Lessig is used to hostile audiences - but he faced the most prickly and feisty gathering of 500 he'll ever address yesterday in Brussels.

CISAC is the body that represents the collectives who gather up the royalties on behalf of authors, composers and songwriters - and this week it's holding its first ever Copyright Summit.

A lot of money passes through these collectives' hands - they distributed €4.3bn back to authors in 2004 in Europe alone. But these pots of money, so painfully clawed back from large media conglomerates, are distributed amongst very many original creators. So as you can imagine, Lessig - who extolls amateur "user generated content" and litigates against professionals - was always going to be in for a rough ride from people who barely scrape a living from their own creativity.

What was the audience really vexed about? Well, when Lessig talks "rights", he means the right to specify how a work is used by other users of digital computer networks. This doesn't include the right to be paid, which is why everyone is here in Brussels this week. This pits a very American kind of individualism - the right to express oneself, dammit! - against a very European tradition of collective action.

In particular, the audience is keenly aware of this tradition of rights won through collective bargaining. Any weakening of this movement for authors' rights is regarded in the same way as a striking union member regards a strikebreaker: as scab labour. Yet Lessig styles himself at the vanguard of a "movement", too, which riles them even more: the creatives see this as not only undermining them, but pinching their slogans and clothes.

(In the USA, the objections to Creative Commons were subtly different: that it was bureaucratic, deceptive, or simply that there was little merit in eulogising Bad Art).

The authors' sentiments expressed this week are genuine and well-founded, but they may be guilty of over-estimating the opposition they face.

Olive branch

The format for the debate helped foster a civilised exchange. Lessig was pitted in a head-to-head with a sensible opponent: Brett Cottle, head of Australian collection society APRA, and chairman of the CISAC board. Brett quietly went about his task of dismantling the Creative Commons proposition, civilly and without hyperbole, and the professor, to his great credit, responded in kind.

After the opening exchanges laid out their respective positions, Lessig held out an olive branch. Although he's defending Google in a copyright infringement suit against Viacom - Viacom wants to be paid for the use of its copyright material on YouTube, Lessig agreed that YouTube should in principle pay creators.

"Copyright is crucial," he said.

The professor said he favours licensing schemes that would recognise "a second class of creators".

This was a delicate piece of politics from Lessig, who has close ties to the defendent. Google sponsors Lessig's law department up the road at Stanford to the tune of $2m, and when the professor wrote an op-ed article in the New York Times last year defending the $150bn internet giant, some bloggers suggested, not unreasonably, that this fiduciary affiliation should have been made more explicit. Perhaps, they suggested, Lessig should have been accredited more accurately - for example - as the "Professor of Google Studies, Google Cyberwhizz Dept, Googleford."

So creators should be paid, but only a secondary class of creators. Where that leaves the primary class of creators is anyone's guess.

Please don't misunderstand me

To illustrate his point, Lessig condemned Lucas Films for its recent invitation to Star Wars fans to send in "Mash-Ups" of the movies, and yet retain for itself a perpetual global license on the creative work submitted. Lessig saw this as the cheesy, cynical PR move it is: "That's sharecropping," he said.

But Brett had a broader point, one shared by most of the audience. No matter how much Lessig says he believes in copyright, his "movement" of evangelical network utopians wants to tear it down.

Why? Because copyright, and in particular the aspect known as droit d'auteur (the author's moral rights to assert how it used), creates "friction" for network utopians. What's bad for the network is bad for us, they argue. Network utopians dream of a universe running like a smoothly oiled piece of clockwork machinery - much like the benevolent machines in Brautigan's famous hippy poem Cybernetic Meadow. When they need to ask for copyright - or pay a creator - it messes up what they think is the perfect, smooth running of the network. Creative Commons, as this reporter has argued before, is designed for the benefit of the network, not the author. The licenses are a minor technical bugfix to a borderline problem, that of obtaining rights clearance rapidly in a digital age. And for that limited purpose, they're a creditable answer.

But Creative Commons isn't sold as a minor bugfix, Cottle noted, so much as a moral crusade. Every time the scheme is launched in some new territory, pointed out Brett, it is accompanied by a cacophony of anti-copyright rhetoric. This rhetoric lumps creators in with The Enemy - The Man:

"Don't treat the authors as if they're record companies," he pleaded. "We're at the bottom of the food chain."

This got Lessig defensive.

"Nobody who works for Creative Commons has ever attacked collecting rights societies in the way you described," he said. Maybe it was the volunteers who'd put such notions about, the professor ventured.

The audience bristled, making what we interpreted to be indistinct but firm Gallic noises of disapproval.

Lessig continued,

"I assert that there is no fundamental disagreement between the objectives of the Collecting Rights Societies, as you've described them, and the objectives of Creative Commons."

Oh yeah? said Cottle.

Yeah, said Larry.

"People misunderstand me from all perspectives," he pleaded.

At this point a deep, tumultuous groan shook the hall. And it was some moments before anyone could hear the stage again - not that anyone was paying any attention.

Once again, and to his credit, Lessig explained his dual roles.

"I have two lives," he said. "One is in Creative Commons. And the other [is leading] litigation which is, I’m sure, in conflict with the views of many people about copyright."

Voila! we might say, if our French was up to it. By day, I am your friend, he was trying to tell us; but by night, I litigate against you, you intransigent, Luddite Bastards!

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