Stanford law professor Lawrence Lessig is back fighting the Copyright Wars. His newest book, Remix: Making Art and Commerce Thrive in the Hybrid Economy (Penguin), offers some theories about how online content economies are developing as well as some prescriptions about how to reform copyright law to make it fairer to consumers and to enable the market to develop faster.
Lessig develops two models for this book. One involves two types of economies that he claims are growing in parallel online: the market economy and the sharing economy. The difference between the two is that the former necessarily involves the exchange of money for goods and services (buying food at a supermarket) while the latter necessarily does not (making love to your spouse). The other is what he calls RO (read-only) vs. RW (read-write) media models -- passively consuming media vs. remixing it.
As he sees it, the online media world is moving towards a "hybrid economy" that combines sharing and market principles, and towards RW-style engagement with content that he asserts is a truly new chapter in creativity. But, he says, these developments are threatened by copyright laws, the power of big media companies, and the entrenched self-interest of lawyers. He says that big media companies define any use of content that goes beyond their traditional RO models as "piracy" and seek to criminalize it, and that this is wrong, because (among other things) it sends the wrong message to kids about literacy and creativity. (In fact, Lessig was inspired to re-enter the Copyright Wars because he has two young children and sees how they are engaging with content as they grow.) He is quick to point out not only that there is nothing wrong with RO media and market economies but also that they are necessary in order to provide incentives to content creators.
Readers of Lessig's previous books and other writings will find some familiar themes in Remix. One is that copyright law is "overburdened" with applicability to a broad and fast-growing variety of online content scenarios because most of them involve making (at some level) copies of content; that copyright requires highly specialized expertise to understand, and that lawyers are happy to continue providing that expertise at high prices. He echoes the writings of Jessica Litman by reminding us that until 1909, copyright law did not necessary apply whenever someone made a copy of some content.
Another familiar theme is that Congress should enact a compulsory license that charges consumers a flat fee for access to all content online and distributes the revenue equitably among rights holders. He advocates the use of content identification technology to help determine usage in order to calculate payments, and he suggests mandatory deposit of content identifiers (watermarks or fingerprints) as part of copyright registration -- something that I have called for as well.
Lessig also suggests that copyright law badly needs to be reformed and simplified; for example, it should decriminalize noncommercial uses of content. He claims that most noncommercial uses of content are benign and that media companies sometimes threaten "pirates" with lawsuits on principle rather than because of lost revenues - an activity that becomes unnecessary if noncommercial use is allowed by law.
Unfortunately, Lessig does not consider the ambiguity between decriminalizing noncommercial uses of content and the existing fair-use principle in US copyright law that a use's legality should be judged according to its effect on the market for the work -- which many lawyers cite as the most important of the four fair use principles. The examples of noncommercial use that Lessig cites, such as copyrighted music used as background for personal videos posted on YouTube, may have a neutral-to-positive effect for the music's rights holders. But someone who operates a "warez" or BitTorrent site is also engaging in noncommercial use. I defer to real copyright experts on the question of whether these two legal constructs (and related ones, such as the Supreme Court's 2005 Grokster decision on inducement of copyright infringement) can coexist peacefully.
Lessig's economic models also seem problematic. He offers examples of successful market/sharing hybrid economic models -- such as Linux, where the operating system itself is founded on sharing principles while the success of companies like Red Hat is purely market-based. But it's more accurate to see these as market-based businesses that figured out how to exploit resources that are cheaper and/or are happy to be compensated in ways other than money. The fact that alternate compensation schemes online often involve "social capital" is incidental. It doesn't take a degree in economics to understand that if two businesses offer similar products and one of them finds a way to get its labor for free, it will be more successful. Software developers like to contribute their time and skills (and, often, their employers' equipment) to Linux enhancements and bug fixes, but you still have to pay people to do tech support.
The Internet is nothing if not a grand enabler of this type of economic efficiency. The counterexample that proves this point is Mechanical Turk (MTurk), a business that open-source theorists and academic cyber-scholars love to hate. MTurk, owned by Amazon.com's Jeff Bezos, engages in what the professional services industry euphemistically calls "labor arbitrage" for tasks that are not easily or accurately done by machines, such as comparing images or labeling them with captions. Anyone can sign up for MTurk and get paid a few pennies for each such task they complete during idle moments. There's no social capital whatsoever in this, merely a way of using the efficiency of the internet to seek cheap labor.
Even Lessig's dichotomy between RO and RW media is a bit of a stretch. RW media has always been possible; just ask any third-grader who has done a montage in art class with scissors and a glue stick. The questions have always been -- as Lessig admits -- whether the outputs of RW media have any creative value by themselves and what rights the owners of the original works should have over their inclusion in the RW work. A visual artist once told me about her concept of taking covers of fashion magazines and replacing the images of fashion models with those of herself, as an ironic commentary on fame, beauty, and so on. Tools like Adobe Photoshop make this easier, but lawyers for Conde Nast and Hachette would be just as likely to raise concern over such a thing if it were done strictly in the hardcopy domain.
As with Lessig's other works, Remix is thought-provoking, passionate, and backed by deep research and deliberation. But it goes to show yet again that the Copyright Wars have neither easy explanations nor easy answers. Lessig's first book, Code and Other Laws of Cyberspace, offers a rich framework for analyzing the forces that shape life online; it remains his true masterpiece.