077 - Lawrence Lessig interview
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Friday, October 7, 2005
Lawrence Lessig

Lawrence Lessig interview Edit

Lawrence Lessig interview

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Interview with Lawrence LessigEdit

Tom and Molly interview Lawrence Lessig, Professor of Law at Stanford Law School and chairman of the Creative Commons project. They discuss Creative Commons, copyright law, and fair use.


Tom Merritt: We have Lawrence Lessig, Professor of Law at Stanford Law School and also chairman of the Creative Commons project, on the podcast today to talk to us about Creative Commons. And thank you for joining us Professor Lessig, for coming on the show and talking with us today.

Lawrence Lessig: Thanks for having me.

Merritt: One of the reasons we wanted to have you on is Molly and I, a while back, read Dvorak’s column about Creative Commons, and that started a big discussion between us around the issues that John raised about it, which were, basically, that he found it unnecessary and possibly even dangerous. And we wanted to get a little better understanding. So, could we start of by just, if you could, explain what Creative Commons is?

Lessig: Sure. Creative Commons is, basically, a simple device to give people a way, meaning authors and artists, to mark their creativity with the freedoms that they intend it to carry. And if you don’t know anything about copyright law, that seems like an unnecessary burden, because you would think there were simple ways to do that without needing a structure like Creative Commons. But in fact, anybody who’s been watching the way copyright law develops realizes that copyright law actually creates the need for something like this. Because what copyright law does is create an assumption, basically a legal presumption, that absolutely every creative act is automatically protected by copyright, meaning all rights are reserved to the artist. And what that means is if you want to use a creative work in any way that would infringe those rights, you need to either get permission or rely upon a very vague doctrine called fair use. And so, in the context of the internet, where every single use produces a copy and every single copy triggers copyright law, we wanted to just provide a simple way for people to say, Okay, these uses we’re totally fine with, and these uses, these rights, we want to still reserve to ourselves.

Merritt: Now, copyright law is such that you don’t have to actually register something or do anything. If you create a work and put it out there, is it automatically copyrighted?

Lessig: That’s right. I mean, John is a very sensible guy. He thinks of the world in a sensible way. He thinks what copyright law is is something where you mark a work with copyright and you put your name and the date, that’s what he said in his column. In fact, that’s not true. In 1976 the law changed so that things are copyrighted automatically. You don’t need to do anything. And that made sense in 1976 when we were living in an analog world only. It didn’t really matter that things were copyrighted because when you used creative work in the analog world it didn’t produce a copy. You know, you read a book, it doesn’t produce a copy. You don’t need permission to read a book from the copyright owner. But the very same act in cyberspace does produce a copy. And the point is, the presumption of the law is you need permission everywhere. And so we just thought we’d build a simple way to make it so you didn’t need permission everywhere, because permission has already been given.

Molly Wood: So I think that one of the questions that hit that column and that fact raised for me was that obviously it seems to me that that application of copyright law is insane—that something is automatically copyrighted as soon as it is created, basically. Dvorak seemed to argue, and I feel like maybe I might buy into this a little bit, that the efforts toward creating kind of this parallel set of regulations could detract from maybe just trying to fix copyright law. Do you feel like that is true, or do you feel like there are kind of parallel efforts happening.

Lessig: Well, you know, I’ve been fighting in this battle about copyright law for a long time. And I started thinking that what we could do is just race to the Supreme Court and get the supreme court to fix everything.

Wood: Right. [laugh]

Lessig: And you know, that was a naïve law professor believing that courts decide things just on the basis of principle, as opposed to what ordinary people think about it. And the fact was, when we lost in the Supreme Court, our challenge to the Copyright Term Extension Act, a large reason for that was that most people had a very simple, and sometimes simplistic, view about the way copyright law actually functions. And this kind of black and white view, and the view is: Either you respect copyright rights perfectly or absolutely, a kind of all rights reserved conception—or you don’t believe in intellectual property at all, kind of an anarchy conception. And our view was we were only going to get progress if we could begin to show the world that there’s many spaces between zero and one. It’s not like you either respect copyright or you oppose copyright, but you could actually respect copyright, or believe copyright should be—the system should be changed or should be reformed or updated to fit new technologies.

And also people need to understand that there’s no such thing as either holding your copyright or not holding your copyright, there’s lots of space in between. But what we found is that many artists, for example, were completely happy if people took their work and remixed it for non-commercial purposes, you know taking it and remixing it on a computer, but of course would be upset if that remix then turned out to be Sony’s next big hit. So they had a conception, a sort of natural intuition, that they wanted to reserve some rights, like a commercial right, but they wanted to encourage people to use their work for other purposes. And so we just tried to create a simple way to make it possible for them to do that.

Now, what we found is when people get into the Creative Commons movement, and we have an international movement now that has more than 70 countries porting licenses to their local jurisdictions, they then become aware of all the craziness inside of copyright law, and they then become activists around trying to change copyright law. And so the Creative Commons movement has started this movement called the iCommons movement, which is really just international organizations that are trying to reform copyright law internationally—not opposed to copyright law, but just opposed to the particular way it seems to be working in the digital age. So, I understand in the very beginning you might think, Boy, if you try to make the system easier you will actually slow down reform, but in fact it is actually the opposite that is happening.

Merritt: Let’s talk a little bit about fair use, too. Because I think people come at it from the other side, and say, Well, if I want people to remix it and not for commercial, can’t they just do that? Don’t they have the right under fair use?

Lessig: Yeah, so the answer is no. The answer is: Fair use is the right to hire a lawyer in America. And for most of the creators we’re talking about that means no rights or no protections at all. So let’s, first of all, be very clear about a misunderstanding in John’s article. John said that we were in some sense in competition with fair use, at one particular point suggested that we were giving rights away that were inconsistent with fair use and that we would then be involved with a lawsuit to sort of fight fair use. The license explicitly says that it does not modify fair use rights at all; the very first substantive part of the license says that fair use rights are not changed at all. The Commons Deed, in bold text, says fair use rights are not changed at all. So we’re not trying to reduce, modify or even define fair use rights. We’re saying, whatever the fair use rights are, we’re adding some additional protections on top. And those additional protections give people confidence, so that they could take a gamble in the courts about fair use, but if they’ve also got, in addition to their fair use rights, some clear signals of things that they’re allowed to do they don’t need to be so uncertain about what, in fact, they can do.

Now there’s a very famous judge, Judge Posner, who just wrote this fantastic little article contrasting fair use in the minds of judges and fair use as it actually exists. What he did was he asked a bunch of publishers and film makers to tell him about their actual beliefs about what fair use does. And what he found is that the law in theory is much more protective of fair use rights than the law in practice. And that’s what we found as well—that if you rely upon just fair use, then what you will do is radically restrict the scope of freedoms, not because the theory isn’t a good one, but because the practice has actually made fair use quite a weak and insubstantial protection.

Wood: I guess the question that raises is, is there a possibility that people will, in embracing creative commons—assuming that Creative Commons sort of has this explosion and everyone uses it for their content—is there a possibility that people will become increasingly ignorant of fair use and the rights that they maybe should have under that doctrine, and sort of let it die off?

Lessig: I certainly think there’s a possibility; I just don’t think it’s remotely probable. So I, unfortunately, live like four different lives. One of them is chairman of Creative Commons, the other is the head of the Stanford Center for Internet and Society. We have a fair use project. What we do is litigate fair use cases all the time. I spend a huge amount of my time representing film makers who are actually trying to practice fair use. And what our objective in this clinic is, is to sort of establish precedent that demonstrates just how broad fair use is. And it’s the first time you’ve got this kind of support for fair use because, again, typically what happens is you’ve got very strong media companies that have all the lawyers in the world and an artist on the other side who basically doesn’t have any lawyers that he can afford because lawyers are very expensive. And so the law always gets defined against fair use.

We’re not the only people doing that. There are other projects around the country. And my point is we’ve got to recognize that if we’re gonna reform, we’ve got to be able to walk and chew gum at the same time. We need to both build a practice of people, sharing and building on other people’s content—that’s what Creative Commons is trying to do—and to also be very vigorous in defending and expanding the scope of legal protections that fair use provides. And if we do both, we have a chance of changing. But if you sit back and wait for the lawyers to deliver freedoms to you, well guess what: Freedom is not coming. And if you sit back and you ignore the law, then, of course, the law will be changed by the content industry to make it so that there is no freedom defined in the law. We’ve got to do both. And that’s the life that I’ve been leading and many other people, too.

Wood: So I would say, our readers, and certainly I, have some confusion. This may seem like a simple question, but I think there’s a lot of confusion about what exactly fair use is. Is fair use itself a law? Or is it actually a doctrine built out of a body of precedent, and what does that mean for us? Can it be overturned? Can a company decide to just create a product that blatantly gets rid of fair use—with no legal ramifications?

Lessig: Yeah, so fair use was originally developed as a doctrine of common law interpretation of the copyright act. And then in 1976 Congress explicitly made it part of the copyright act, so Section 107 of the copyright act defines the fair use provisions. But it doesn’t define fair use in a precise way. What it does is give a four-factor test, like a balancing test. And the Supreme Court has consistently insisted that you’ve got to consider all four factors in evaluating whether something is fair use or not. So people have in their head all these clear and simple rules: Like if it’s for education it’s fair use, if it’s less than two seconds—or two minutes—it’s fair use. None of those come from the law. What that comes from is sort of people attempting to simplify the law. So the law basically says, if you’re accused of infringing a copyright, then you can go to court and defend your rights, invoking Section 107 of the copyright act. And then a judge is going to balance four factors and decide whether what you’ve done is fair use or not. And as that suggests, the problem with that system is you live under some extraordinary uncertainty until the end when you can be slammed by the court if the court decides what you did is not fair use.

So, my favorite example is a fantastic company, They created this little cool service called Beam-it, so that you could put your CD’s in your computer, it would recognize your CD, and then it would give you access to your content from their servers, wherever you were. You could sign in from work, you could listen to your music—sign in from home, listen to your music. They spent a lot of time trying to decide whether this would be considered fair use, and they thought it would because it was a simple “space-shifting” in a sense, of your content. So now you could access it from a lockbox in cyber space rather than carrying your CD’s around. I think it was a very good argument. Again, Judge Posner, in his commentary about the case, thought it was a pretty good argument. But they went to court. They lost. The judge said, Well, whether the use is fair use or not, you originally made 50,000 copies of CD’s to produce this, and when you made those 50,000 copies, you didn’t have anyone’s permission, so that’s the copyright violation. And the judge awarded damages, according to the copyright statute, of $140 million against

Wood: Which is how they ended up at CNET. [Laugh]

Lessig: Yeah, that’s exactly right. So you look at this and you say, Okay in principle you have a fair use right, but if the product of sort of trying to practice your fair use right is that you get sued into bankruptcy, how valuable is the right? So in principle the right is in the statute.

Now the other big part about this fair use problem is that the law can give you the right, but if the technology comes along and takes it away, you don’t, under the law right now, have the right to hack the technology to get back the fair use right. So, if you use DRM technologies to lock content down in a way that would infringe what you would otherwise think of as fair use rights, the DMCA prevents you from circumventing that technology, or developing tools to circumvent that technology, in order to exercise your fair use right. So Congress gives you the right on the one hand, but then the DMCA takes away the right on the other hand.

Wood: Right.

So this is again just a demonstration of the weakness, I think, of the way fair use currently exists in the law. It’s not to say it’s not important. Of course it’s important. But if that’s all we depended upon, then we would not have the kind of freedoms that I think we need in order to build the kind of free culture that I think the network will support.

Merritt: Now, I think one of the things I’ve run up against in trying to understand Creative Commons and how it works, is that you get people, and maybe John is one of them and maybe not, who don’t understand why you would want to give away any of your rights.

Lessig: Sure.

Merritt: Why you would want to allow people to use something for free, in whole especially. The remixing thing sometimes people understand a little more, but the ones, like Cory Doctorow does, where he gives away the digital copies of his books in whole for free.

Lessig: Right. So, yeah. And my book, Free Culture, was also licensed under Creative Commons license like Cory’s was. And you’re right. People don’t have a good intuition about it. But intuitions respond to facts. And so you’ve got to look at the facts about what actually happens when people practice this kind of free culture.

So it’s not just Creative Commons that’s demonstrated this. Think about the band Wilco. Wilco’s Yankee Hotel Foxtrot album was rejected by their label—they didn’t like it. They said, You have to change it. Wilco said, We’re not gonna change it. So the label said, Fine, you can have it back. So Wilco then released it, free on the net. Right, the whole album, free! Under terms that would be equivalent to our non-commercial license. The buzz around that album, because of its free release on the net, inspired another label, in fact a label owned by very same parent company to buy the album back for three times the original price. They released it as an ordinary CD and it far outsold any other CD that Wilco had ever released. So the point was, releasing the work was a way to actually make more money in the sale of CD’s.

And that’s the core message that we do with Creative Commons. We’re not moralizing or lecturing people about why they should give away their content for free. I’m the last person in the world who would have standing to say that. All we’re saying is, here’s a bunch of tools that you can use in the digital environment to see what works. And what we know so far is that nobody from the 20th century has a clue about what works best in the digital environment. So try it. Try lots of different experiments here.

Now, there are other people, like scientists or academics, who never get paid for copies of their content. I, as an academic, write an article. What I want is people to read the article. Yet because of the war that goes on around copyright, if I try to put together a course packet for my students here at Stanford, I’ve got to explicitly clear the right to include articles by other academics in that course packet. Now that’s insane because absolutely every single one of those academics loves the idea of their work being included in the course packet, so they all would say yes, but the point is, the system right now is set up to say, Well, you’ve got to call them up and get that kind of permission.

Merritt: Well is it the journal publishers, then, that are the issue there?

Lessig: No, they will all give you permission—when you ask them. But the point is, what we said about that is why should we force people to go through that hassle of asking, why don’t we create a system so that the permission can be granted up front. And that’s again, basically, what the Creative Commons license does. It just says, I, the author, have decided that these uses I’m totally happy with. Go ahead and do it. And sometimes that will actually make it better, easier for me to succeed, sometimes it will make it better for my—you know, succeed in a commercial way, sometimes it will make it easier for my work to spread, and that’s exactly what I want my work to do.

And the key thing is to recognize the world of creators is not defined by Brittney Spears. There is a wider range of creativity than this single model of creativity. Yet, copyright law, as it is increasingly being presented to the world, assumes that the only creator is Brittney Spears—that the only person out there is the person that wants to totally control distribution of the works to maximize their money profit, and that’s just not the world. And so, what we tried to build was a system that was more responsive to the way the world actually is.

Merritt: Alright. Well, you know what—we would like to keep talking through the rest of the morning. But—

Wood: [laugh] At least.

Merritt: But we do have to keep the podcast of indeterminate length within a certain amount of bounds, so we’re gonna wrap it up there. But thank you so much for coming on and helping us understand more about this issue.

Lessig: My pleasure.

Wood: Yeah, thank you.

Lessig: Thanks a lot.

Wood: Okay, bye.

Lessig: Bye.

Merritt: Again that was Professor Lawrence Lessig, Professor of Law at Stanford Law School and chairman of the Creative Commons Project. And, plus, if you go to his bio at, he’s involved in about a hundred million other things as well. And he’s a very active and a very smart guy, and I want to thank him again for coming on the show.
Creative Commons
Stanford Center for Internet and Society


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