When technology makes an illegal act easy, should the law make that act legal?
By Paul K. Saint-Amour
September 1, 2008
Remix: Making Art and Commerce Thrive in the Hybrid Economy, by Lawrence Lessig, Penguin, 328 pp., $25.95
John Philip Sousa, the March King, was no fan of the gramophone. “These talking machines are going to ruin the artistic development of music in this country,” the composer told a congressional committee on copyright reform in 1906. “When I was a boy . . . in front of every house in the summer evenings you would find young people together singing the songs of the day or the old songs. To-day you hear these infernal machines going night and day.” Home playback was killing the hootenanny along with the values sustained by amateur musicianship. Sousa argued that as the player piano and the phonograph grew in popularity, people would lose the ability to learn and adapt and play songs for themselves. Music would forfeit its place at the center of communal life; even the vocal chord, he warned, would become a vestigial organ, “eliminated by a process of evolution.”
Sousa’s century-old technophobia might seem an odd touchstone for Lawrence Lessig, the Stanford law professor who is routinely described as a Web guru, cyberlaw visionary, and augur of our digital future. But according to Lessig’s new book, Remix: Making Art and Commerce Thrive in the Hybrid Economy, Sousa’s moment and our own are at opposite ends of a single technological arc. When Sousa testified in 1906, the participatory culture of the sing-along was being replaced by a consumer culture built around store-bought recordings. (Lessig, borrowing a distinction from network management protocol, calls the participatory culture “Read/Write” and the prerecorded culture “Read-Only.”) Today, at our end of the arc, the two cultures are again in flux. After a century of Read-Only dominance, says Lessig, the Read/Write culture Sousa saw being killed off is making a comeback through networked digital technologies favoring interactivity, community, and open access to culture making. This time, it appears, the infernal machines are on the side of the sing-along. Or at least of its 21st-century cousin, the mash-up—that emerging genre of songs and videos digitally assembled from elements of existing source material.
Unlike C. P. Snow’s description of the gulf between science and the humanities, Lessig’s “two-cultures” narrative is not about divergent, seemingly irreconcilable cultural tendencies. Instead, Remix argues that the digital revolution will produce a new equilibrium between Read-Only and Read/Write. Read-Only will persist because we still need it to do what it does well: uphold professional expertise, safeguard artistic integrity, and provide incentives for fresh creation. Although digital technology has created millions of infringing file-sharers, it has also assisted Read-Only by putting new tools—Digital Rights Management code, narrowcast advertising, instantaneous-delivery systems—in the hands of Read-Only purveyors (think iTunes, Amazon, Netflix) whose inventories it has vastly expanded. Meanwhile, Read/Write culture is waking from a hundred-year sleep. Simple applications allow users to recombine sounds and images captured from media and mass culture into new forms—mash-ups and remixes with unique creative and critical properties. Participants in the blogosphere rate, index, respond to, and build on one another’s work, often outperforming standard media outlets in their coverage and analysis of current events. These new kinds of expression and connectivity, says Lessig, do more than reboot the neighborhood sing-along. They improve the health of democracy at the national level and beyond, endowing citizens with a sharpened sense of responsibility, reciprocity, shared endeavor, and the power of expression.
But like any emergent thing, Read/Write culture is fragile. Its greatest threat comes not from the persistence of Read-Only culture, Lessig suggests, but from the expansion of copyright. Sousa, too, recognized this danger: even as he spoke in favor of extended protection for musical compositions, he warned that the law must not overregulate cultures of amateur creativity. Although technology now favors the amateur, intellectual-property law has realized Sousa’s fears. Thanks to lobbying by anxious content industries, copyright has grown massively in length and extent, leaving almost no leeway for noncommercial amateur uses of protected material. Content owners regularly threaten ordinary people for using images, clips, or samples in ways that pose no threat to the market for the original. (Remix’s opening example is a mother who videotaped her 13-month-old dancing to a scarcely audible recording of Prince’s “Let’s Go Crazy” and posted the video on YouTube, only to learn that threats from Prince’s publisher had prompted the removal of the video as an “unauthorized performance” of the song.) Some content providers realize that noncommercial remixes can increase the market for the original. But many of them continue to send cease-and-desist letters to amateurs anyway. Failing to defend their intellectual properties to the fullest legal extent, they worry, will weaken their claim on those properties. So until the extent of the law diminishes, we are stuck at an impasse between what technology makes possible and what the law will allow.
Anyone familiar with Lessig’s earlier books, his public domain advocacy, or his pioneering of the Creative Commons flexible-licensing system, will recognize Remix’s basic position: copyright is a good and necessary law that has outgrown its sensible limits and now impedes creativity, freedom of expression, public discourse, and the growth of innovative business models that might take better advantage of new technologies. The new book elaborates this position through recent examples, ranging from Harry Potter fan sites to filmmaker Johan Söderberg’s “Endless Love,” which mashes up media clips of George W. Bush and Tony Blair. A lively section on Web economies illustrates how profit motives and sharing paradigms have combined in new “hybrid” entities such as craigslist, Dogster, and Second Life. But what really sets Remix apart from its predecessors is, first, a matter of autobiographical urgency. Having recently become a father, Lessig is beginning to think generationally about the so-called war on piracy. “Now I worry about the effect this war is having upon our kids,” he writes. “What is this war doing to them? Whom is it making them? How is it changing how they think about normal, right-thinking behavior? What does it mean to a society when a whole generation is raised as criminals?”
Rhetorically, these questions attempt to reach across the aisle to copyright extremists who worry about how file-sharing is corrupting young people’s values. But in their substance, they angle the book toward a discussion of law’s relation to ethics. They ask us to consider the standards according to which a society might decriminalize behaviors formerly forbidden by its laws. Lessig knows better than to argue that law simply determines social norms. In fact, his book’s core argument is built on the opposite premise: that law should adapt to norms as they change for reasons external to law. But when it comes to the question of why norms change, Remix is only interested in one answer: technology. The result is the book’s one notable weakness: a determinism that seems to put everything—everyday practices, ethics, and law—causally downstream from technology.
Take Lessig’s discussion of the war on piracy. After noting that peer-to-peer networks have turned illegal file-sharing into a convenient and widespread practice, Lessig urges that we decriminalize that practice. If we don’t, he warns, young people will feel justified in ignoring an inconvenient law whose enforcement seems both arbitrary and severe. They may even become habituated to lawbreaking. Lessig asks law to come to the rescue of people who can’t resist adopting a technology that makes theft effortless. He says, in essence, that when technology makes a wrong thing easy, law should make that thing less wrong. There may, of course, be good reasons to reevaluate an act’s “wrongness.” We might argue that law punishes file-sharers out of proportion to the harm they do to society. Or we might argue, as Lessig has done elsewhere, that law needs to change to reflect the changing nature of property. But Remix proceeds from the file-sharer’s sense that he or she is entitled to a degree of access that technology has made habitual, and in doing so it strangely overwrites that person’s freedom to have chosen otherwise. Such an argument makes technology a gift, or a given, that we cannot help but receive on its own terms. It puts human actors in a disquietingly passive relationship—a Read-Only relationship—to technology.
Although Remix does not develop a systematic ethics, it nonetheless advances a strong ethic: a conviction that the best ideas arise out of minimally regulated conversation and competition. Lessig describes this Read/Write ethic in a compelling account of why he blogs. “To write in this medium is to know that anything one writes is open to debate.” That openness, he adds, “is the product of a kind of democracy made real with writing.” Fittingly, Remix bears more traces of its author’s blogging and of his blog-ethic than his earlier books do. These traces include an accessible and personal voice, a generous way of linking out to the work of others, and a certain comfort with miscellaneity. This last allows for frequent day trips from the book’s argumentative center, with the result that Remix is part polemic, part intro to economics, part memoir, and part Baedeker to the Web’s more successful ventures and communities. What unifies the book is not a single, unassailable argument. Instead, it is a commitment to Read/Write that transcends the Read-Only limits of the printed volume. Remix depicts its author less as a sure-footed guru than as a student of his own reactions, thrown off-balance at key moments by the art or plight of others, then recovering a more intricate composure. By spreading before us not just its evidence and its tributary voices but also the eccentric paths by which its conclusions were reached, Remix provides an inspiring example of open-source intellectual process.
Lessig has lately thrown himself off-balance by leaving the field he helped define. Last year he announced that he would be turning his attention away from Internet law in order to fight the corruption of the U.S. political process by special interest money. Showing preliminary signs of this new direction, Remix is also a transitional book. His hope in writing it, says Lessig, was to revive two “Sousarian sensibilities,” namely an appreciation of noncommercial creativity and a wariness about overregulating that creativity through copyright law. Lessig’s valediction to cyberlaw contributes powerfully to this revival; its author leaves the sing-along stronger for his having sung.
Paul K. Saint-Amour is a professor of English at the University of Pennsylvania and the author of The Copyrights: Intellectual Property and the Literary Imagination.
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