Having laid out his suggestions, Lessig moves on to discuss the changes that all of us need to take in our approach to the fair use of content. The “control freaks” at Big Media have to be educated on how the iron fist approach to all non-compensated use is not in their own best interests in the long run. Copyright law needs to be more “opt in,” enabling NBC or Lucasfilm to assert total control over content without everyone everywhere having to worry about rights permissions for everything all the time.
An academic publishing a paper wants nothing more than people to copy and read her paper. But the law says no copying without permission. A teacher with an innovative lesson plan for teaching Civil War history would love nothing more than for others to use his work. The law says others can’t without clearing the rights up front. The essence of copyright law is a simple default: No. For many creators, the essence of the creativity is: Of course.
Creative Commons licenses allow creators to sort out for themselves which rights need to be asked for or compensated, and which rights don’t – “all rights reserved” vs. “some rights reserved.” This moves the whole issue of copyright from a public sphere (everything that is copyrighted falls under standards set by Congress regardless of the creator’s intent) to the private sphere (each creator manages the degree to which their rights are asserted).
Lessig makes a faulty analogy when he criticizes the government’s power to do good:
This (obvious) point first cracked into my head as I was reading the accounts of America’s war in Iraq…In book after book, even those sympathetic to the objectives of the war could barely find anything good to say about how it was executed. But as I read more and more of these books, I was struck most by a question that seemed simply not to have been asked before that war was waged: What reason was there to think that government power could succeed in occupying and remaking Iraqi society? I’m not talking about the invasion: that’s easy enough. Invasions are won with powerful tanks and well- placed bombs. I’m talking about everything that would obviously have to be done after the invasion— from security, to electric power, to food supplies, to education. It was as if those at the very top simply assumed that the government could do all these things, without ever asking whether that assumption made any sense.
Of course, the point of the conquest was not to rebuild Iraq; the point of the conquest was to enrich Halliburton and Blackwater – Disaster Capitalism at its worst. The point was to pay Halliburton exorbitant sums of money to cut corners, electrocuting servicemen and exposing them to toxic chemicals while failing to rebuild the infrastructure of Iraq because the point was not to rebuild it but only to have a contract in place as an excuse to transfer wealth from the public to the private sector. Later on, he does cover how corporate interests govern the IP debate:
The simple reason we wage a hopeless war against our kids is that they have less money to give to political campaigns than Hollywood does. The simple reason we do nothing while our kids are poisoned with mercury, or the environment is sent over the falls with carbon, is that our kids and our environment have less money to give to campaigns than the utilities and oil companies do. Our government is fundamentally irrational for a fundamentally rational reason: policy follows not sense, but dollars.
One of the great tragedies of the copyright wars, in Lessig’s view, is the criminalization of a generation.
Our kids are “pirates.” We tell them this. They come to believe it. Like any human, they adjust the way they think in response to this charge. They come to like life as a “pirate.” That way of thinking then bleeds. Like the black marketeers in Soviet Russia, our kids increasingly adjust their behavior to answer a simple question: How can I escape the law?
Although Lessig doesn’t extend the parallel, this “Sovietization” of our approach to the law, in which it becomes understood that the law is not only oppressive but absurd, extends to drug use and the hysteria of strip-searching teenage girls in search of Advils, and “zero tolerance” Columbine-paranoia that result in an honor student being expelled for having a bread knife in the back of a truck. The government has declared “wars on” those who pirate music or smoke pot, resulting in the development of a wartime mindset in those it attacks. Any good therapist will tell you that when you directly attack a person’s behavior (“Dr. Phil is TELLING YOU to DO WHAT DR. PHIL TELLS YOU and KNOCK IT OFF!”), that person will automatically defend his or her behavior, even if at heart they want to change it.
It’s hard to understand why Lessig has become the target of so much corporate vitriol, when he is one of the few thinkers on IP who actually supports the idea of copyright. Perhaps because his solutions are so reasonable, and more likely to be adopted than the anarchistic ideas of those who would abolish IP altogether. The problem, in my eyes, is that we are facing a system of controls in which control itself is the goal – obey, obey, yours not to reason why. Nor for those who demand obedience to ask themselves why; to ask themselves in the face of their utter failure to control and be obeyed, what other means might be used to defend the things they claim to care about – property, rights, respect for the law, a civil society. Lessig’s ideas are dangerous because they require those in power, in boardrooms and legislative chambers and media outlets, to acknowledge an existing, irrevocable loss of control. He offers them a way to retool the system in such a way that in exchange for acknowledging that loss, they can help build a society in which property rights are respected not in and of themselves as some Magnificent Abstraction, but through the pragmatic, practical effect of rebuilding a positive image of property and rights in the minds of the young. Unfortunately, in the minds of those in power, to surrender the right to sue dead grandmothers or letting go of the rights to “Happy Birthday To You” is the same as being sent to the guillotine and seeing Revolution Run Rampant.
The issue of IP is not a level field where equals meet to discuss and compromise, but a hierarchical pyramid on which any compromise creates a “slippery slope” down which those at the top are tumbled into the mud. Like gay marriage, where religious nuts insist that two men kissing will “destroy marriage” (that’s right, I kissed a man; you have get a divorce now), a level of irrational hysteria needs to be maintained in order to prevent the loss of one’s control over others, to prevent reason from prevailing. All acceptance is surrender in this mindset, “cuttin’ ‘n’ runnin’” instead of “standin’ tall,” a failure not to be borne. The rightness of one’s position is irrelevant; only “staying the course” matters even if it leads off a cliff. Believers are kept in line not with the power of reason which supports the position, but only with the specter of the shame and humiliation that will befall them if they “go wobbly.”
Over the last few years, my own ideas have changed more than I could have imagined. From a paranoia about someone “stealing my ideas,” from a Great Man Toils Alone mindset, from a refusal to write but for money, I’ve evolved. I haven’t abandoned the hope of making money – good money – from my writing, but for the longest time, seeing the ease with which copyright is so effortlessly circumvented, I’ve been at sea as to how anyone who doesn’t perform live or create unique physical artifacts could make a living. In Lessig I’ve found ideas whose time has come, and an opportunity to turn the tide, and a hope that creativity will not return to being either a bastion of the idle rich in their idle hours, or of artists starving in garrets.