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Free Ride: Disney, Fela Kuti and Google's war on copyright

Lawrence Lessig's work 'isn't worthy of a Harvard prof'

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Interview Wars over creators' rights are pretty old – much older than copyright law. In one of the first "copyfights", in 561AD, about 3,000 people died, writes Robert Levine in his new book Free Ride. St Colmcille and St Finnian clashed over the right to make copies of the Bible, with the King castigating Colmcille for his "fancy new ideas about people's property".

Levine's book is a story of the digital copyright wars ...

"I tried to write in an analytical way about something people get very emotional about. I don't really believe the entertainment industry is good and the technology industry is bad; I just don't see it as a morality issue. Businesses are in business to make money," Levine says.

The book details the calamitous decisions made by the music business, particularly in its suing of end users for infringement. "In a few years," he writes, "the major labels managed to destroy the cultural cachet they had spent decades building."

The book also follows in detail Google's "war on copyright" and the academics and activists who benefit from it. It comprehensively demolishes the arguments put by Lawrence Lessig, who helped create the cyberlaw industry. This is a book with masses of solid, meticulously researched detail.

I caught up with Levine in Berlin.

Q: What do you see as the culture industries' biggest mistakes? You focus a lot on music ...

Levine: The music industry made a lot of mistakes. They could have launched an iTunes store. And suing individuals was a mistake. I don't think there's anything wrong with companies suing companies: Napster, or Grokster for example. But suing people created publicity so bad that it made it very hard to get a legislative solution. It was a complete disaster.

But you have to remember that there's a lot of things that aren't legally or financially practical for an incumbent to do. You have a game theory-type problem: the establishment player has a lot to lose and has to play by the rules. A startup doesn't have to.

'The culture business is one that generates jobs that are pretty good, and doesn't create a lot of pollution, compared to BP'

People say they should have worked with Napster. But the labels would have been trading quarters for dimes, and they didn't even know those dimes would be worth 10 cents. It assumes Napster would have worked out as a business.

I also think labels should have cut CD prices faster. But did you know Universal Music cut CD prices 25 per cent in 2002, and sold 13 per cent more CDs. You lose money that way; we've seen that again and again. We've seen iTunes raise the price of the best-selling songs from 99 cents to £1.20 and make more money. People aren't price-sensitive as much as they're convenience-sensitive. They want it when they want it.

The record companies should have done something like Hulu. I gather there were antitrust issues. Hulu does a good job, and it also helps TV companies control things a little bit. Hulu also makes money. The labels together could have done something pretty well.

Q: And DRM?

Levine: A lot of people say DRM was huge problem. But when EMI eliminated it, it didn't create a huge boost in sales. People hate DRM in that it won't let them do what they want, but very few people are against it on principle. I haven't seen any evidence that people care. Sales don't respond to DRM policy.

People want something easy to use and iTunes is easy to use. Convenience is what iTunes delivers.

It's all about markets

Q: Your argument is really to get money flowing to the creators online.

Levine: We've had a market for IP for at least 300 years. I think it works pretty well. If you compare the cultural output of countries with a market for IP and those without, it's clear that a market gives you better IP on an economic level, and possibly on a cultural level too.

If you look at West Germany, they produced Herzog, Fassbinder, Can, Neu! and Krautrock. In East Germany they produced, well, maybe some good TV shows, but not ones they could export.

Or if you look at Nigeria and Brazil, they're countries that in the 1960s and 1970s had great pop music that changed the world. In Brazil, you had Tropicalia, Gilberto Gil and Os Mutantes; people still buy those records today. in Nigeria, you had Fela Kuti, who is still as iconic as he ever was. This generated money sent back to Brazil and Nigeria. Now people are still making the music but not a lot of money is going back. And those countries could use the money. The culture business is one that generates jobs that are pretty good, and doesn't create a lot of pollution, compared to BP.

If the culture business disappears, then culture is not going to disappear. I use the example of The Beatles without George Martin: they would have continued to be great songwriters, and we'd have the songs, but they wouldn't have made great albums.

You can't have an economy without a market. You can't have a market without property rights, and you can't have property rights without a means of enforcing those rights. Copyright has some aspects of property, and one of these is you can't sell something if somebody else is giving it away.

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