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Remix (part 7)

May 22, 2009

Lawrence Lessig has posted a magnificent excoriation of Mark Helprin’s screed, Digital Barbarism. Titled “The Solipsist and the Internet”(possibly a tip of the hat to the classic internet essay, “The Cathedral and the Bazaar”), it’s 21 pages which should be read by every law student, would-be critic, and supporter and opponent of open source, open access, fair use, copyleft, and anything else related to IP. It’s loaded with Clarence Darrow-ish treats; what a legal brief, what a closing argument, is supposed to sound like – exhaustively footnoted, constantly astonished, occasionally hilarious, and all true.

Though the Internet is a waste, though blogs are "subliterate" and wiki’s are written "the way Popeye speaks," Helprin draws exclusively upon the Internet to form the knowledge he needs to launch his attack. He cites no book, or scholarly article, that might help explain the copyright puzzle that started him on his odyssey. Literally everything he points to to explain the weirdness that is copyright is either a blog, or a wiki, or an essay in an Internet publication.

You might well wonder, though, at least if you’re not in the center of this debate, how many books about this subject there could actually be? How many scholarly articles? How much attention has been devoted to this relatively obscure clause in the Framers’ Constitution?

The answer is lots…There is an endless list of sources that one might have consulted in trying to understand the odd "unfair exception" in the structure of copyright law. No doubt, some of this material is not available on the Internet. One might have to — God forbid — go to a library, and check out a book. But anyone who cares to could come to understand why the law is as it is, and why the way the law is is neither inconsistency nor injustice.

Most of course won’t ever do this. The number of Americans who will actually read a book about copyright this year is just rounding error on the population of New York. But among those Americans who read at least one book about copyright should certainly be any American who is writing a book about copyright. I’m not sure what the proper proportion is — 10 books in to get one book out? 100 books in to get one book out? Whatever the ideal number, it is greater than zero. Yet zero is the number of books this romantic defender of books has apparently read about copyright before he wrote this book that he would like you now to buy (and his great grandchildren to earn royalties from).

And so on. By the end of the article, you realize Helprin has humiliated himself, allowed some agent or publisher or the lure of a book advance to suck him into one of the most popular and fatal vortices of ideas these days – “everyone’s talking about your op-ed/magazine article, let’s add nothing of value to it but pump it up into a large print, heavily white-spaced book and sell it for twenty five bucks!”

As I noted yesterday, Helprin doesn’t even understand what a Creative Commons license is, and has written that he thinks CC is “richly financed…by Microsoft.” (No doubt he’s saving the gnomes in Geneva, the Trilateral Commission and the Illuminati for the sequel.) As Lessig notes, “To say such a system [Creative Commons] is against copyright is like saying Intuit is against the income tax because it sells products that help you find tax deductions.”

Helprin’s work is chockablock with Aynrandian/Foxnewsian hatred of anything that might chip away at the Great Man Toils Alone theory of genius, or which suggests that people working together are more efficient than one working alone. Wikis are “like the Great Soviet Encyclopedia on speed,” and as Lessig points out, he gets it totally wrong in saying that changes are made “anonymously,” its wicked gnomes working tirelessly to “disorient and disempower the plasticized masses.” “Collaboration,” without explanation, is a dirty word: “Historians used once to work alone, reading in archives and writing in college rooms. History is now a more collaborative exercise.” (God forbid you get an objective opinion of your work before you publish!)

Probably most tragic about Helprin’s crackpottery is that like some hopped-up prosecutor burning to Texecute someone, anyone, he is attacking…the wrong guy. He rails against Lessig, who opposes piracy and supports reasonable copyright and IP protection, when people like Richard Stallman have famously said, as Lessig quotes in Remix, “from engineers according to their skill to engineers according to their need,” and the authors of Against Intellectual Monopoly would abolish all IP and let a thousand flowers bloom. It’s like railing against Kennedy for being soft on communism while maintaining silence on the atrocities of Mao. If Helprin’s book were a car, a recall would be in order.

And, in a nice transition, this brings us back to the book, as part three of Remix begins with this statement:

Copyright law regulates culture in America. Copyright law must be changed. Changed, not abolished. I reject the calls of many (of my friends) to effectively end copyright. Neither RW nor RO culture can truly flourish without copyright.

Lessig wants to see the laws rationalized, so that they protect both the financial incentive of creators to make new things, and the public good of open access to what I’ll call the “tools” created therein. Here are his five suggestions:

Deregulate Amateur Creativity. Amateur creativity is the non-profit reuse of copyrighted tools – for instance, this video by Mike Horn in which the tools of the Death Star and the USS Enterprise are repurposed for humorous effect. As long as it’s not served up on YouTube with ads, it’s fair use; if ads are added, George Lucas should get a cut. However, I don’t buy Lessig’s solution to the problem of the misuse of tools associated with a certain product or creator: “if the owner can’t control the use, then the misuse is not the owner’s responsibility.” Not legally, true, but in the unsophisticated public’s mind, image is everything: in Lessig’s example, Kate Winslet might show up in an NRA ad. In this recent Reddit thread, a user posted a flyer from the fascist British National Party, which used iStock photos to imply that the people in them endorsed its appalling politics (ironically, some of them were foreign laborers, whom the BNP wants to evict from the country). In another BNP flyer, a former soldier was depicted in uniform next to an endorsement of BNP policies; he has since come forth to denounce the BNP and said that, when he contacted them, he was told by these proud patriots to “fuck off.” Lessig argues that in these cases powerlessness is power; that Warner Brothers can say to the irate mother, hey, my stuff is on that pro-abortion website because it’s out of my hands. But this doesn’t protect individuals from the power of image association that advertisers and politicians have used for decades to manipulate weak minds, and would do so with increased malice and glee if not prevented.  (One thinks of Bruce Springsteen’s ire when the Republican Party, sworn enemy of the poor, appropriated his song, and therefore his image, when they repeatedly attempted to use “Born in the USA” as a campaign theme.)

Clear title/opt, in copyright. This makes sense. Rather than copyright being assigned automatically and left intact for, well, nearly ever in our current system, Lessig advocates a return to the “original intent” of an automatic 14 year period after creation, after which the holder would have to actively exercise the renewal or lose certain control over the work. Just as you have to actively engage with the government to keep your car (registration, proof of insurance) or house (title, property tax paid up), you would need to do the same with creative property.

Simplify copyright law. Lessig suggests that “fair use” allowances be incorporated into copyright law, “follow[ing] in part the practice of European copyright systems.” (Hey, Helprin! Socialism Alert! ‘Cuz Europe=Socialism! And Socialism=Badness!)

Love the copy, hate the use. Reform the law so that backing up a CD up to your hard drive isn’t considered “theft.” “The law should be triggered by uses that are presumptively, or likely to be, commercial uses in competition with the copyright owner’s use.”

Decriminalize file sharing. It’s here to stay; all the denunciations in the world won’t roll back the technological clock. The question is, how do we manage it?

Congress needs to decriminalize file sharing, either by authorizing at least noncommercial file sharing with taxes to cover a reasonable royalty to the artists whose work is shared, or by authorizing a simple blanket licensing procedure, whereby users could, for a low fee, buy the right to freely file- share.

I’ll break off here, and work on my conclusion this weekend.

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