The Impact of Technology on Copyright and Creativity

Remix, a New Book by Lawrence Lessig

Remix: Making Art and Commerce Thrive in the Hybrid Economy
Penguin Press, 2008, 352 pages. ISBN-10: 1594201722

Stanford law professor Lawrence Lessig is one of the most recognized voices in the copyright reform movement. He is a co-founder of Creative Commons—a nonprofit that has designed a set of copyright licenses that make it easier for people to share and build upon the work of others. Lessig has also long worked to both simplify and limit the reach of our current copyright system. His previous books, Code and Free Culture, dealt with copyright reform through the prism of our increasingly networked culture. In Lessig's view, today's copyright laws are woefully unequipped to handle the range of activities and uses inspired by today's technology. Peer-to-peer sharing and an explosion of user-generated creativity, he argues, make it difficult if not impossible to place restrictions on the duplication of copyrighted work in a digital environment.

Lessig's latest, Remix: Making Art and Commerce Thrive in the Hybrid Economy, reinforces the views put forth in his earlier books, while offering examples of an emerging “hybrid economy,” where the tensions between copyright and digital culture will theoretically be lessened by a synergistic relationship between a “sharing commons” and the commercial marketplace.

Historically, Lessig contends, creative production fits one of two categories: RO (Read-Only), and RW (Read-Write). Originating from computer file descriptions, these terms describe the way a user interacts with an artifact, cultural or otherwise. A Hollywood blockbuster or bestselling album would be an example of an RO artifact—the viewer or reader passively consumes and is not free to add to, edit, duplicate, or otherwise “remix” the original work. RW on the other hand—such as blog culture, sampling, or collage—encourages consumers to respond to, embellish, alter, or even share the work. Lessig is a passionate advocate for RW culture, describing at length how RW culture ultimately enriches society and gives people (particularly kids) a means to develop useful creative skills.

Lessig's examination of different economic models for producing, distributing, and interacting with cultural output highlights the tension between what he describes as an overreaching and outdated copyright regime and the “hybrid” economies where the relationship between sharing and commerce blur. Lessig builds on his argument for the value of RW culture, suggesting that large corporations have something to gain from amateur and non-commercial uses of its properties. Such activity, he maintains, amounts to “free marketing”—often eclipsing the scope of what the company could envision or afford. According to Lessig, a thriving hybrid is achieved when one “creat[es] value by giving people what they want… designing what you're offering so that people getting what they want also give something back to the community.”

Despite the reference to “community,” which could be understood more broadly, Lessig's examples are limited mostly to Web sites and services that are RW by design —the YouTubes, Craigslists, Flickrs, and Slashdots of the world. While certainly inspiring, limiting his analysis in this way provides little insight on how exactly these models might apply outside the hyper-networked world of Stanford or Silicon Valley.

Remix succeeds in many ways—it's a valuable and effective primer for understanding how much the world has changed in the last two decades. Lessig's conclusions about technology's impact on copyright and creativity are generally spot-on, but he sacrifices some necessary complexities for the sake of a compelling narrative.

By presenting extreme examples of where copyright breaks down in the digital realm, Lessig persuasively argues his case for reform. Many of his solutions seem simple and straightforward: deregulate amateur creativity, mandatory copyright registration, simplify the copyright code, decriminalize the non-commercial copy, monetize peer to peer filesharing. All interesting ideas that, in theory, many could agree with. Yet the devil lives in the details. And since I am a musician and a pragmatist, the way these solutions are implemented is almost as (if not more) important to me than the logic behind the theory.

For example, what's the best way to monetize peer-to-peer sharing? Through advertisements? A surcharge on internet service bills? Would this set a single price for all digital music? Would it cover all artists, or just those on major record labels? And who would be involved in making these decisions? Does he want to leave it to Congress to figure out? (I hope not!)

Or take “deregulate amateur creativity.” Who decides who the amateurs are, and who gets paid as a professional? Is it still amateur when it's posted on a commercial service like YouTube? How do you make sure the amateur/professional distinction gets made in a way that helps and does not hurt the unexpected overnight sensation as they make the quick and rough transition from amateur to professional? I understand why he advocates for clear title and reintroducing copyright registration, but how do you implement it in a way that doesn't hurt artists' abilities to collect royalties, including overseas royalties (which is currently possible because the US signed an international treaty that prohibits requiring registration before getting copyright protection)?

Professor Lessig states, “Collateral damage is the focus of this book… I want to spotlight the damage we're not thinking enough about.” Remix captures the imagination, painting a compelling picture of how such damage can be alleviated through the application of common sense. Yet the picture is left unfinished when it comes to avoiding collateral damage from the solutions themselves.

Jean Cook is deputy director, Future of Music Coalition.