Lawrence Lessig on Copyright

Monday, April 3, 2006

Lawrence Lessig on Copyright

Lawrence Lessig is Professor of Law at Stanford Law School, the author of Free Culture, a monthly columnist at Wired since 2003, blogger, and father of the Creative Commons movement. He says for him there’s “too much travel, too much email, not enough time for reading or writing,” but he found some time to answer my questions by email. (Feel free to share.)

I got a feeling the world of copyright is in a big mess today. What do you think is the single biggest problem?

The problem is fear. The copyright industry fears the internet, and they are exercising their (considerable) power to achieve control. That effort is creating huge problems for a wholly creative and productive use of digital technology.

Current laws aside, what forms of copying/ republishing/ making derivative works do you think are clearly immoral or harmful to society – and which do you think are moral?

I think, with important exceptions, breaking the law is immoral, even if the law itself should be changed. So I think the law governing copyright should change, but I don’t support p2p file sharing under the current state of the law.

Can you give some of the “important exceptions"?

When you’re willing to suffer the penalties as an act of civil disobedience.

Is DRM always evil?

I don’t think technology should enforce copyright, so I would always prefer no DRM to DRM. But if there is DRM, it must permit fair us, and it must give authors the right to opt out of technological control.

Why shouldn’t technology enforce copyright?

Because copyright was designed with a human enforcer in mind.

How does the human enforcer claim his copyright? Isn’t that tedious to do, hunting down copyright breakers when technology can do it automated?

It is difficult. But repressing speech shouldn’t be easy.

Do you think bloggers should have better tools to defend against splogs, automated spam blogs? Or do you too think here the human enforcer must do some work and hunt them down, and then contact the blog providers?

Yes, and no. I think there needs to be legislation and a bounty system to make it enforceable.

How would a DRM look like that would allow people to make “fair use” of the work?

It would allow them to turn the DRM off, and use the work under an assertion that the use was fair.

Is it legal for me to break DRM (e.g. with a software tool I download) for “fair use” purposes?

Not according to the DMCA, but it should be.

In your book Free Culture you’re detailing the legal system in the US (and its faults). How much more complicated is the copyright law on a global perspective? Which laws apply in digital publishing anyway – is it the home-country of the server which is being published on?

Copyright law is insanely complicated, everywhere. And the law that US law thinks applies is the place where the activity occurs. So if I download in the US work protected by US law but in the public domain in the country where the server is, the download is still a violation.

The Digital Millennium Copyright Act, from what I understand, allows people to make hosting services, search engines and so on take down copyright-infringing material. However I’ve also heard that some hosting services take down content upon only the receipt of such a note – without verifying the claim. Can you confirm this?

When a site gets a notice and takedown, it can remove the material. But if the person whose material has been removed challenges the removal, then the site must determine whether the takedown was justified.

So with DMCA take-downs, the material can be removed before the creator is asked?

Yes, but the creator has a right to demand it be put up, and then the site must decide.

What do you think is the ideal term for works to stay copyrighted, and at what renewal rate? Aren’t the 50 years you talk about in Free Culture too long already?

Certainly, but we need first steps to reasonableness.

What do you think of DVD country codes that don’t allow me to play DVDs I ordered in the US on a typical German DVD player (or PC)?

They are a clumsy tool of price discrimination, which can be good as well as bad.

I know many of the problems with region codes, but can you give an example of where society benefits from them (or possibly, companies), as you mentioned?

If they mean that the price can be lower in poorer regions, then it is good.

Where do you see Creative Commons now in terms of where you want it to be?

CC is my child. One is never settled about the life of one’s child.

Many Creative Commons licenses allow non-commercial only republication, but I’m often unsure where “commercial” starts. For example, what if I have ads next to your Creative Commons-licensed book on my server to be able to cover my server costs? (And what if one day those ads make more money than just that?)

It is an important problem. We’re in the process of clarifying, but it is a hard problem to clarify.

Who are your biggest enemies in the copyright war, and have you ever been threatened?

There are no enemies, just people who don’t yet understand. And yes, I have been threatened, but by an ally, not an enemy.

Who was the ally that threatened you?

He was the person I was intentionally vague in describing.

What was your biggest single achievement in the copyright wars?

I’ve not achieved anything significant.

If sharing is better for the music industry and its artists, why aren’t the RIAA simply allowing it more freely... out of egoism?

What is good for artists is not necessarily good for record companies.

I’m playing devil’s advocate here: why does creativity always mean to copy something? Can’t I be creative by being completely original?

I’d like to see you try.

Do you think a more fair copyright law will emerge and how do you think people can help the cause?

Not yet, but if people pushed for it, yes.

What do you think of software patents?

Government regulation of the creative process that does more harm than good.

What could be done to prevent rich people to threaten poor people others with (copyright infringement) law-suits?

Aggressive judges who pushing abusers.

When you go shopping in Shanghai and other Chinese cities, there are lots of public shops which sell cheap, seemingly mass-manufactured copycat DVDs of Hollywood movies (often these movies are just released to US cinemas). If you take a guess why do you think the Chinese authorities don’t fight this more strongly? And do you think it’s a big problem for Hollywood?

It hurts, not much, and certainly doesn’t benefit the Chinese.

What is the purpose of a trademark? And why does Marvel seem to get away with putting a “™” after the word “super heroes"?

Trademarks are designed to avoid confusion – so you don’t believe you’re getting something from X when you are in fact getting something from Y. But I don’t underatand Marvel’s claims.

Are you more of an Apple or Windows man?

I use a Mac.

Are there any new books currently in the making next to the Wiki-revised edition of “Code and Other Laws of Cyberspace“?

There are three – all secret.

What book are you currently reading?

Play Between Worlds, by TL Taylor.

Which blogs do you read?

Joi Ito’s, Boing Boing, Dave Winer’s.

Which person (living or dead) is your biggest inspiration?

My son.

What do you urge people to do to make the (copyright) world a more fair place?

Demand the regulators justify their control.