Original URL: http://www.theregister.co.uk/2007/05/31/lessig_vs_authors_cisac/

Larry Lessig in the lion's den

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

By Andrew Orlowski

Posted in Law, 31st May 2007 15:45 GMT

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!

I love you so much, I'll see you in court

Now you can begin understand the antipathy in the room. However, there's much ado about not very much. Creative Commons as a "movement" is far smaller than it looks. It can barely muster 100 or so evangelists to the cause every time it "launches" in a new country (Brazil being the exception - every 50 years or so, Brazilians go nuts over some new technocratic new Silver Bullet, and right now they're really hot for Creative Commons). Isn't CC only worth getting upset about if you really want to?

Reg columnist Steve Gordon agreed: "Lessig isn't the enemy," he told us.

Larry, rather unconvincingly, attempted to grab the middle ground:

"We are not your enemy," he said. "There is an Abolitionist Movement and I spend much of my time arguing against them. Because they've built Free Software and Wikipedia they don't think copyright is needed."

"With Creative Commons...we've created copyright owners, here."

Alas, anti-copyright rhetoric is central to idea of to what enthusiasts like to style as a "movement". Creative Commons gatherings resemble a torchlight procession of copyright haters, united by only one thing: a shared belief that It Must Go. Put it this way: if the good professor attended each brave Creative Commons launch asserting the value of moral copyright, and that the soul of creativity lay with the individual author, then no one would turn up.

So when Lessig argues that he's the sensible face of the internet wingnuts, the authors aren't convinced one bit.

There were more groans when Lessig explained the practical value of Commons licenses.

He said that copyright worked fine if you were Madonna, and had a battery of expensive lawyers to assert your rights in court. He justified the Commons licenses as a "tool" that put such power into ordinary people's hands. Creative Commons was a tool for people who didn't have lawyers, he was arguing.

And he put this so nicely that if you didn't know anything about how copyright works - or didn't know about the power of collective action - you might conceivably believe him.

Alas, the small print on the Creative Commons site confirms the opposite is true. Creative Commons emphatically isn't an organisation that will fight your corner. So if you want to assert that your license has been violated - you're on your own. In fact, Lessig even recommends consulting a lawyer before you decide whether or not to take up a Creative Commons license.

Get with the program

In the end, two things happened.

Firstly, Lessig kept his best ammunition dry, to be deployed another day. Only around a third of this audience were actually creatives: the majority being bureaucrats, who looked every inch the part in their beige suits, comfortable, and well-fed. While your reporter typed at the back of the hall, these CISAC executives slumbered, waking only to make the odd cynical disparaging comment.

A future version of the professor - 3.0? - should be able to make the case that authors are ill-served by such complacent types, and he may use his communication gifts to show them how to embrace law and technology better. For now, however, he's synonymous with a "movement" - one based on a fatal flaw - that eulogises clips of cats falling down stairs, or really lame remixes.

For his part, Brett gracefully, and very charitably, concluded that "more clarity" was needed from the Commonistas if they were to make more headway with authors, songwriters, and composers who appreciate a bob or two for their labour. It would help clear up such misunderstandings, he said. But until it did, it was a "sad mirage" that offered false hopes.

Irish film maker Keith Donnell stepped up to the microphone, and congratulated both debaters for their presence:

"...And I'd like to congratulate Lawrence Lessig for his bravery...in coming here and making such an unsustainable argument," he said.

"By allowing people to redefine copyright he's playing into the hands of people who over the years have tried to redefine copyright - so people like me don't get paid." ®

Editor's note: This article has been edited in order to correct a number of errors in the transcription of our notes of Professor Lessig's presentation. Broadly, it is our opinion that these corrections do not alter our representation of Professor Lessig's views, nor of the debate that unfolded in Brussels. A recording of the panel has been presented on Professor Lessig's blog, and we urge interested readers to compare this with our account of the event.

In the first two instances referred to by Professor Lessig there, we paraphrased Professor Lessig's views, but this incorrectly appeared in direct speech. We're sorry for this, and have fixed it. A reference by Professor Lessig to "collection societies" (of authors) was truncated to "authors". Professor Lessig also notes that while his reference to a "second class of creators" was faithfully reported, a further reference to "secondary class" also appeared in quotation marks. A reader could reasonable conclude that the "secondary" reference was made by Lessig. We find Lessig's distinction here between classes of creators to be eccentric and arbitrary, but we're happy to remove the quotation marks.

Prior to the panel, Professor Lessig again failed to accept an offer from us to clarify his views over dinner, at The Register's expense, as he has declined similar offers from us for the past three years.