2 pages essay

The Social Media Reader

EDITED BY

Michael Mandiberg

NEW YORK UNIVERSITY PRESS

New York and London

NEW YORK UNIV ERSIT Y PRESS New York and London www.nyupress.org

© 2012 by New York University All rights reserved

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The social media reader I edited by Michael Mandiberg. p. cm. Includes bibliographical references and index.

ISBN 978-o-8147-6405-3 (cl : alk. paper) ISBN 978-o-8147-6406-o (pb : alk. paper) ISBN 978-o-8147-6407-7 (ebook) ISBN 978-o-8147-6302-5 (ebook) 1. Social media. 2. Technological innovations-Social aspects. I . Mandiberg, Michael. HM742.S6284 2012 302.23'1-dc23 2011038308

The following work bears Create Commons Attribution (CC BY ) license: "Sharing Nicely: On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production" by Yochai Benkler

The following works bear Create Commons Attribution ShareAlike (CC BY-SA) license: "The People Formerly Known as the Audience" by Jay Rosen "Open Source as Culture/Culture as Open Source" by Siva Vaidhyanathan "What Is Web 2.o?" by Tim O'Reilly "What Is Collaboration Anyway?" by Adam Hyde,

Mike Linksvayer, kanarinka, Michael Mandiberg, Marta Peirano, Sissu Tarka, Astra Taylor, Alan Toner, and Mushon Zer-Aviv "Participating in the Always-On Lifestyle" by danah boyd "From Indymedia to Demand Media: Journalism's Visions of Its Audience and the Horizons of Democ­ racy" by C. W. Anderson "Phreaks, Hackers, and Trolls and the Politics of Trans­ gression and Spectacle" by E. Gabriella Coleman "The Language of Internet Memes" by Patrick Davison "The Long Tail" by Chris Anderson

"REMIX: How Creativity Is Being Strangled by the Law" by Lawrence Lessig "Your Intermediary Is Your Destiny" by Fred Von Lohmann "On the Fungibility and Necessity of Cultural Freedom" by Fred Benenson "Giving Things Away Is Hard Work: Three Creative Commons Case Studies on DIY " by Michael Mandiberg "Gin, Television, and Social Surplus" by Clay Shirky "Between Democracy and Spectacle: The Front-End and Back-End of the Social Web" by Felix Stalder "DIY Academy? Cognitive Capitalism, Humanist Scholarship, and the Digital Transformation" by Ashley Dawson The following work bears Creative Commons Attribu­ tion NonCommercial ShareAlike (CC BY-NC-SA) license: "Quentin Tarantino's Star Wars?" by Henry Jenkins

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109 8 7 6 4 3 2 1 p 109 8 7 6 4 3 2 1

--------------- 11-- REMIX

How Creativity Is Being Strangled by the Law

L A W RENCE LES S IG

I ' ve written five books. Four of these books are extraordinarily

depressing. I like depressing, deep, dark stories about the inevitable destruc­

tion of great, fantastic ideas. After my first child was born, my thinking

began to shift some, and I wrote Remix, which is quite new in the collection

because it's a fundamentally happy book or, at least, mostly a happy book.

It's optimistic. It's about how certain fantastic ideas will win in this cultural

debate. Though the problem is that I'm not actually used to this optimism;

I 'm not used to living in a world without hopelessness. So I'm actually mov­

ing on from this field to focus on a completely hopeless topic, solving prob­

lems of corruption, actually. Completely hopeless. But I am happy to come

here to talk about this most recent book.

I want to talk about it by telling you some stories, making an observa­

tion, and constructing an argument about what we need to do to protect the

opportunity that technology holds for this society. There are three stories.

The first one is very short. A very long time ago, the elite spoke Latin, and

the vulgar, the rest of the people, spoke other languages: English, French, and

German. The elite ignored the masses. The masses ignored the elite. That's

the first story. Very short, as I promised.

Here's number two: In 1906, John Philip Sousa traveled to the United States Congress to talk about phonographs, a technology he called the "talk­

ing machines:' John Philip Sousa was not a fan of the talking machines. He

was quoted as saying, "These talking machines are going to ruin the artistic

development of music in this country. When I was a boy, in front of every

house in the summer evenings, you would find young people together sing­

ing the songs of the day or the old songs. Today you hear these infernal

machines going night and day. We will not have a vocal cord left. The vocal

cords will be eliminated by a process of evolution, as was the tail of man

when he came from the ape:'I

155

I want you to focus on this picture of "young people together singing the

songs of the day or even old songs:' This is culture. You could call it a kind

of read/write culture. It's a culture where people participate in the creation

and re-creation of their culture. It is read/write, and Sousa's fear was that

we would lose the capacity to engage in this read/write creativity because

of these "infernal machines:' They would take it away, displace it, and in its

place, we'd have the opposite of read/write creativity: a kind of read-only

culture. A culture where creativity is consumed, but the consumer is not a

creator. A culture that is top down: a culture where the "vocal cords" of the

millions of ordinary people have been lost.

Here is story three: In 1919, the United States voted itself dry as it launched an extraordinary war against an obvious evil-a war against the dependence

on alcohol, a war inspired by the feminist movement, a war inspired by ideas •

of progressive reform, and a war that was inspired by the thought that gov­

ernment could make us a better society. Ten years into that war, it was pretty

clear this war was failing. In places around the country, they asked how we

could redouble our efforts to win the war. In Seattle, the police started to

find ways to fight back against these criminals using new technology: the

wiretap. Roy Olmstead and eleven others found themselves the target of a

federal investigation into his illegal production and distribution of alcohol.

His case, Olmstead v. the United States (1928), was heard by the Supreme Court to decide whether the wiretap was legal. 2 When the police tapped the

phones of Olmsted and his colleagues, they didn't get a judge's permission,

or a warrant, they just tapped the phones. The Supreme Court looked at the

Fourth Amendment to the Constitution, which protects against "unreason­

able searches and seizures:' Chief Justice Taft concluded that the wiretap

was not proscribed by this amendment. He said the Fourth Amendment

was designed to protect against trespassing. But wiretapping doesn't involve

any necessary trespass: they didn't enter Olmstead's home to attach anything

to the wires; they attached the wiretap after the wires left Olmsted's home.

There was no trespass, therefore no violation of the Fourth Amendment.

Louis Brandeis, in voicing his dissent, argued vigorously for a different

principle. Brandeis said the objective of the Fourth Amendment was to pro­

tect against a certain form of invasion, so as to protect the privacy of people.

He argued that how you protect privacy is a function of technology, and we

need to translate the old protections from one era into a new context. He

used the phrase "time works changes;' citing Weems v. United States (1910). Brandeis lost in that case and the wiretap won, but the war that the wire­

tap was aiding was quickly recognized to be a failure. By 1933 people recog-

156 LAWRENCE LESSIG

nized this failure in increased costs they hadn't even anticipated when they

first enacted this prohibition: the rise in organized crime and the fall in civil

rights. They were also seeing a vanishing benefit from this war: everybody

still drank. They realized that maybe the costs of this war were greater than

the benefits. And so, in 1933 the Twenty-First Amendment repealed the Eigh­

teenth Amendment, and Prohibition ended. Importantly, what was repealed

was not the aim of fighting the dependence on alcohol but the idea of using

war to fight this dependence.

Those are the stories, and here's the observation. In a sense that should

be obvious, writing is an extraordinarily democratic activity. I don't mean

that we vote to decide what people can write. I mean that everyone should

have the capacity to write. Why do we teach everyone to write and measure

education by the capacity people have to write? By "write;' I mean more than

just grade-school knowledge to make shopping lists and send text messages

on cell phones. More specifically, between ninth grade and college, why do

we waste time on essays on Shakespeare or Hemingway or Proust? What do

we expect to gain? Because, as an academic, I can tell you the vast majority

of this writing is just crap. So why do we force kids to suffer, and why do we

force their professors to suffer this "creativity"?

The obvious answer is that we learn something. In the process of learning

how to write, we at least learn respect for just how hard this kind of creativity is, and that respect is itself its own value. In this democratic practice of writ­

ing, which we teach everyone, we include quoting. I had a friend in college

who wrote essays that were all exactly like this: strings of quotes from other

people's writings that were pulled together in a way that was so convincing

that he never got anything less than an A+ in all of his university writing

classes. Now, he would take and use and build upon other people's words

without permission of the other authors: so long as you cite. In my view, pla­

giarism is the only crime for which the death penalty is appropriate. So long as you cite, you can take whatever you want and use it for your purpose in

creating. Imagine if the rule were different; imagine you went around and

asked for permission to quote. Imagine how absurd it would be to write the

Hemingway estate and ask for permission to include three lines in an essay

about Hemingway for your English class. When you recognize how absurd

it is, you've recognized how this is an essentially democratic form of expres­

sion; the freedom to take and use freely is built into our assumptions about

how we create what we write.

Here's the argument. I want to think about writing or, more broadly, creat­

ing in a digital age. What should the freedom to write, the freedom to quote,

REMIX 157

the freedom to remix be? Notice the parallels that exist between this question

and the stories that I ' ve told. As with the war of Prohibition, we, in the United

States, are in the middle of a war. Actually, of course, we're in the middle of

many wars, but the one I want to talk about is the copyright war, those which

my friend the late Jack Valenti used to refer to as his own "terrorist war:'3

Apparently the terrorists in this war are our children. As with the war Sousa

launched, this war is inspired by artists and an industry terrified that changes

in technology will effect a radical change in how culture gets made. As with

the Twenty-First Amendment, these wars are raising an important new ques­

tion: Are the costs of this war greater than its benefits? Or, alternatively, can

we obtain the benefits without suffering much of the costs?

Now, to answer that question, we need to think first about the benefits

of copyright. Copyright is, in my view, an essential solution to a particular

unavoidable economic problem. It may seem like a paradox, but we would

get less speech without copyright. Limiting the freedom of some people to

copy creates incentives to create more speech. That's a perfect and happy

story, and it should function in exactly this way. But, as with privacy, the

proper regulation has to reflect changes in technology. As the technol­

ogy changes, the architecture of the proper regulation is going to change.

What made sense in one period might not make sense in another. We need

to adjust, in order to achieve the same value in a different context. So with

copyright, what would the right regulation be?

The first point of regulation would be to distinguish, as Sousa did, between

the amateur and the professional. Copyright needs to encourage both. We

need to have the incentives for the professional and the freedom for the ama­

teur. We can see something about how to do this by watching the evolution

of digital technologies in the Internet era. The first stage begins around 2000,

which is a period of extraordinary innovation to extend read-only culture.

Massively efficient technology enables people to consume culture created

elsewhere. Apple's iTunes Music Store allows you to download culture for

ninety-nine cents, though only to an iPod and, of course, only to your iPod

(and a few other iPods whose owners you trust with your iTunes login). This

is an extraordinarily important and valuable part of culture, which my col­

league Paul Goldstein used to refer to as the "celestial jukebox:'4 This step is

critically important, as it gives people access to extraordinary diversity for

the first time in human history. That is one stage.

A second stage begins around 2004, a reviving of Sousa's read/write cul­

ture. The poster child for this culture is probably something like Wikipedia,

but the version I want to focus on is something I call "remix:' Think about

158 I LAWRENCE LESSIG

remix in the context of music. Everybody knows the Beatles' White Album. It

inspired Jay Z's Black Album, which inspired DJ Danger Mouse's Grey Album,

which literally synthesizes the tracks so that the White Album and Black

Album together produce something gray. That's 2004: two albums synthe­

sized together in what came to be known as a mashup. The equivalent today

is something like the work of Girl Talk, who synthesizes up to 280 differ­

ent songs together into one particular song. Think in the same context about

film: in 2004, with a budget of $218, Jonathan Caouette's Tarnation makes

its debut in wowing Cannes and wining the 2004 Los Angeles International

Film Festival.5 Caouette took twenty years of Super-8 and V HS home movies

and an iMac given to him by a friend to create an incredibly moving docu­

mentary about his life and relationship with his mentally ill mother. On a

more modest but more prevalent level, YouTube is full of something called

anime music videos. These videos are anime, the Japanese cartoons sweep­

ing America today. It is not just kids making them, but we'll just pretend for

a second that it is kids who take the original video and reedit it to a different

sound track. It can be banal or interesting. And almost all of this read/write

has emerged on YouTube.

Many people focus on the copyrighted T V shows that are digitized and

posted onto YouTube overnight. I want you to think about the call-and­

response pattern that YouTube inspires, where someone will create some­

thing and then someone else will create another version of the same thing.

A hip-hop artist named Soulja Boy created a song called "Crank Dat;' which

featured a dance called "The Superman:' The beat was catchy; the lyrics

were literally a set of instructions on how to reproduce the dance. The orig­

inal music video was a low-budget demonstration of the steps required to

reproduce the dance.6 And reproduce it did.? That how-to video has been

viewed over forty million times as of June 2009. There are hundreds, if not

thousands, of videos of the Soulja Boy Superman dance-each one build­

ing on the next: cartoon characters, people of all ethnicities, Internet celebri­

ties, politicians. 8 The point is these are increasingly conversations between

young people from around the world. YouTube has become a platform where

people talk to each other. It's the modern equivalent of what Sousa spoke of

when he spoke of "the young people together, singing the songs of the day

or the old songs:' But rather than gathering on the front lawn, they now do

it with digital technologies, sharing creativity with others around the world.

Just today I discovered a remix of the presidential debates that emphasizes

the prevalence of talking points through remix.9 Many people saw the "Yes

We Can" video featuring famous musicians singing along to one of Barack

REMIX 159

Obama's speeches. 10 This kind of pastiche of songs, sounds, and words has

become a natural way to express politics that maybe a decade ago would not

have been understandable. 11 My favorite is Johan Soderberg's "Bush Blair

Endless Love;' which edits their speeches to a love song by Diana Ross and

Lionel Ritchie. 12 I'm very sad, but this is one of the last times I get to share

this one, as Bush's term is ending shortly.

Remix has nothing to do with technique, because the techniques this

work employs have been available to filmmakers and videographers from

the beginning of those forms of expression. What's important here is that

the technique has been democratized for anyone who has access to a fifteen­

hundred-dollar computer. Anyone can take images, sounds, video from the

culture around us and remix them in ways that speak to a generation more

powerfully than raw text ever could. That's the key. This is just writing for

the twenty-first century. We who spend our lives writing have to recognize

that nonmultimedia, plain alphanumeric text in the twenty-first century is

the Latin from the Middle Ages. The words, images, sounds, and videos of

the twenty-first century speak to the vulgar; they are the forms of expression

that are understood by most people. The problem is that the laws govern­

ing quoting in these new forms of expression are radically different from the

norms that govern quoting from text. In this new form of expression that has

swept through online communities that use digital technology, permission is

expected first. Why is there this difference?

It is a simple, technical clause in the law, a conflict between two architec­

tures of control. One architecture, copyright, is triggered every time a copy

is made. The other architecture, digital technology, produces a copy in every

single use of culture. This is radical change in the way copyright law regu­

lated culture.

Think, for example, about a book that is regulated in physical space by

copyright law. An important set of uses of a book constitute free uses of a

book, because to read a book is not to produce a copy. To give someone a

book is not a fair use of a book; it's a free use of a book, because to give some­

one a book is not to produce a copy of a book. To sell a book requires no per­

mission from the copyright owner, because to sell a book is not to produce a

copy. To sleep on a book is an unregulated act in every jurisdiction around

the world because sleeping on a book does not produce a copy. These unreg­

ulated uses are balanced with a set of regulated uses that create the incen­

tives necessary to produce great new works. If you want to publish a book,

you need permission from the copyright owner. In the American tradition,

there is a thin sliver of "fair use;' exceptions that would otherwise have been

160 I LAWRENCE LESSIG

regulated by the law but which the law says ought to remain free to create the

incentive for people to build upon or critique earlier work.

Enter the Internet, where every single use produces a copy: we go from

this balance between unregulated, regulated, and fair uses to a presump­

tive rule of regulated uses merely because the platform through which we

get access to our culture has changed, rendering this read/write activity pre­

sumptively illegal. DJ Danger Mouse knew he could never get permission

from the Beatles to remix their work. Caouette discovered he could wow

Cannes for $218, then discovered it would cost over $4oo,ooo to clear the

rights to the music in the background of the video that he had shot. Anime

music videos are increasingly getting takedowns and notices from lawyers

who are not happy about the one thousand hours of remixed video needed

to create the anime music videos. And back to my favorite example of "Bush

Blair Endless Love": I don't care what you think about Tony Blair, I don't care

what you think about George Bush, and I don't care what you think about the

war. The one thing that you cannot say about this video is what the lawyers

said when they were asked for permission to synchronize those images with

that soundtrack. The lawyers said no, you can't have our permission, because

"it's not funnY:' So the point here is to recognize that no one in Congress

ever thought about this. There was no ATM-RECA Act, the "Act to Massively

Regulate Every Creative Act" Act. This is the unintended consequence of the

interaction between two architectures of regulation, and, in my view, this is

problem number one: the law is fundamentally out of sync with the tech­

nology. And, just as with the Fourth Amendment, this needs to be updated.

Copyright law needs an update.

Problem number two is what those who live in Southern California typi­ cally think of as problem number one: piracy or, more specifically, peer­

to-peer piracy. Piracy is the "terrorism" that Jack Valenti spoke of when he

called kids terrorists. Now, I think this is a problem; I don't support people

using technology to violate other people's rights. In my book Free Culture

and in Remix, I repeatedly say you should not use peer-to-peer networks to

copy without the permission of the copyright owner. But all of that acknowl­

edged, we need to recognize that this war of prohibition has not worked; it

has not changed the bad behavior. Here's a chart of peer-to-peer simultane­

ous users (see fig. 11.1) . The one thing we learn from this chart is that peer­ to-peer users don't seem to read the Supreme Court's briefs: the arrow marks

the date that the Supreme Court declared completely, unambiguously, that

this is presumptively illegal. After the ruling, the number of users did not

decrease.

REMIX 161

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All this war has done is produce a generation of "criminals:' That part

of the story is very ugly, unhappy, and sad. It is the sort of inspiration that I

used for my last book, Free Culture. But times have changed, and the story in

Remix is a story of change, a change that is inspired by what I think of as the

third stage in this development: the development of hybrid economies.

To understand a hybrid economy, first think about what "economies"

means. Economies are repeated practices of exchange, over time between at

least two parties. I want to identify three such economies. First, there are

commercial economies. At the grocery store it is a quid pro quo: you get a

certain number of bananas for a certain number of dollars. Money is how we

speak in this economy. Second, there are economies where money is not part

of the exchange. For example, two kids playing on the playground is a shar­

ing economy. Friends going out to lunch sharing their time with each other

is a sharing economy. And romantic love is a sharing economy. They are

economies, because they exist over time, but, for these economies, money is

not how we speak. Indeed, if we introduced money into these economies, we

would radically change them. Imagine if two friends were planning a lunch

date, and one says, "How about next week?" and the other one says, "Nah,

how about fifty dollars instead?" Or consider that when money is introduced

into romantic relationships, it radically changes the meaning of that econ­

omy for both parties involved. These are both rich and important economies

that coexist with the commercial economy. They don't necessarily compete,

but we want lives where we have both.

Now the Internet, of course, has produced both commercial and sharing

economies. The Internet has commercial economies where people leverage

knowledge to produce financial value, and it has sharing economies like

Wikipedia or free sound resources like FreeSound.org or SET I@home, where

people make their resources available to discover information about the uni­

verse. The Internet also has hybrid economies, which I want to focus on.

A hybrid economy is one where a commercial entity leverages a sharing

economy or a sharing entity leverages a commercial economy. I'm not going

to talk about the second case. I want to focus on the first case, where com­

mercial economies leverage sharing economies. So here are some examples,

obvious examples. Flickr, from its very birth, was a photo-sharing site that

built sharing into its DNA. Indeed, it facilitated sharing by setting "public"

as the default viewing state for all uploaded images and giving people the

option to license their photos explicitly under a Creative Commons license.

This sharing enabled community creation. Yahoo bought Flickr with the goal

of leveraging value out of this sharing economy. Likewise, Yelp has exploded,

REMIX 163

as thousands of people around the world share reviews of hotels or restau­

rants. These shared reviews, which people do for free, produce value for Yelp.

Second Life began as a virtual world filled with big blue oceans and beauti­

ful green fields, but through literally hundreds and thousands of hours of

volunteer labor by people from around the world creating objects, places,

and buildings, they have produced an extraordinarily rich environment that

attracts people to Second Life and which profits the company, Linden Labs. 13

These are examples of what I think of as a hybrid. Once you see these

examples, you will begin to see hybrids everywhere. Is Amazon really a com­

mercial economy in this sense? Because, though it is selling books, much of

the value of Amazon comes from the enormous amount of activity that peo­

ple devote toward helping other people navigate the products which Amazon

tries to sell. Apple is doing this. Even Microsoft gets this deep down in its

DNA. Of course, Microsoft builds much of its support through volunteers

who spend an enormous amount of their time not helping their local church

but helping other people run Microsoft products more simply. Now this is

not an accident. Mark Smith, a very bright former academic, works in some­

thing called the Community Technologies Group at Microsoft. This group

develops all sorts of technologies to gauge the health of these communities,

to encourage these communities to be more healthy so that other people

want to spend more unpaid time helping Microsoft get richer. This dynamic

is extraordinary. And it's no surprise, then, that at a conference about a year

and one-half ago, I heard Steve Ballmer declare that every single successful

Internet business will be a hybrid business. I think there is enormous prom­

ise in these hybrid combinations of free culture and free markets. This pres­

ents an enormous potential for the Internet economy to drive value back into

these creative industries. That is the argument for what I think can happen,

but this takes us doing something to produce it.

I want to identify two kinds of changes. The first change is a very techni­

cal legal change: the law needs to give · up the obsession with the copy. As

discussed earlier, copyright law is triggered on the production of every copy.

This is, to use a technical and legal term, insane. I believe the law needs to

focus on meaningful activity; in a digital world, the copy is not a meaning­

ful activity. Meaningful activity, instead, is a function of the context of the

copy's use. Context will help us distinguish between copies and remixes. We

need to distinguish between taking someone's work and just duplicating it

versus doing something with the work that creates something new. Context

will help us distinguish between the professional and amateur. The copyright

law, as it exists right now, presumptively regulates all this in the same way.

164 I LAWRENCE LESSIG

Never before in the history of copyright law has it regulated so broadly. In

my view, it makes no sense to regulate this broadly right now. Instead, copy­

right law needs to focus on professional work being copied without being

remixed. It needs to effectively guarantee professionals can control copies of

their works that are made available commercially. Amateurs making remixes

need to have free use, not fair use; they need to be exempted from the law of

copyright. Amateurs need to be able to remix work without worrying about

whether a lawyer would approve their remix or not. And between these two

very easy cases, there are two very hard cases, professional remixes and am a­

teur copying, cases where the law of fair use needs to continue to negotiate to

make sure that sufficient incentives are created while leaving important cre­

ativity free. Now, if you look at this and you have any conservative instincts

inside you, you might recognize this as a kind of conservative argument. I

am arguing in favor of deregulating a significant space of culture and focus­

ing regulation where the regulators can convince us that it will be doing

some good. That's change number one.

Change number two is about peer-to-peer piracy. As discussed earlier, we

have to recognize we're a decade into a war on piracy that has totally failed. In

response to totally failed wars, some continue to wage that same war against

the enemy. That was Jack Valenti's instinct. My instinct is the opposite. It's to

stop suing kids and to start suing for peace. For the past decade, the very best

scholars around the country have created an enormous number of propos­

als for ways to facilitate compensation to artists without breaking the Inter­

net, proposals like compulsory licenses or the voluntary collective license.14

But as you look at all of these proposals, what we should recognize is what

the world would have been like if we had had these proposals a decade ago.

Number one, artists would have more money; of course, artists get nothing

from peer-to-peer file sharing, and they don't get anything when lawyers sue

to stop peer-to-peer file sharing (because any money collected goes to the

lawyers, not the artists). Number two, we would have more competition in

businesses; the rules would be clearer, so there would be more businesses

that could get venture capital to support them as they innovate around ways

to make content more easily accessible. Number three, and the point that is

most important to me, is that we would not have a generation of criminals

surrounding us. We need to consider these proposals now. We need this legal

change.

The law needs to change, but so do we. We need to find ways to chill con­

trol-obsessed individuals and corporations that believe the single objective of

copyright law is to control use, rather than thinking about the objective of

REMIX 165

copyright law as to create incentives for creation. We need to practice respect

for this new generation of creators. For example, there is a kind of hybrid

which I unfairly refer to as a Darth Vader hybrid. This name was inspired

by the Star Wars MashUps site that enables users to remix this thirty-year­ old franchise through access to video footage from the films, into which you

can upload and insert your own material. You can integrate your own music

and pictures into the Star Wars series. But if you read the terms of service

for this site, the mashups are all owned by Lucas Film. 15 Indeed, Lucas Film

has a worldwide perpetual license to exploit all content you upload for free,

without any recognition back to the original creator. Yes, this is a hybrid econ­

omy, but an economy where the creator doesn't have any rights. Instead, it's a

sharecropping economy in the digital age. This is an important understand­

ing to track because people are increasingly taking notice of the way hybrid

economies work and wondering whether there is justice in it. Om Malik asks,

does "this culture of participation . . . build businesses on our collective backs?

. . . Whatever 'the collective efforts' are, they are going to boost the economic

value of those entities. Will they share in their upside? Not likely!" 16

We increasingly arrive at this question: what is a just hybrid? I don't

think we know the answer to that question completely. I do think we have

some clues. Neither historical nor digital sharecropping is a just hybrid. So

how, then, can we express this respect? One way to express this respect is

to practice it. Companies can practice it, and you can practice it by doing as

Radiohead, Nine Inch Nails, Girl Talk, Beastie Boys, David Byrne, Spoon,

Fort Minor, Danger Mouse, Gilberto Gil, Thievery Corporation, Matmos,

Cee-Lo, Le T igre, and My Morning Jacket have done, making your works

available in ways that expressly permit people to share and build upon your

works. Many companies are already doing this, companies like Flickr, Blip

TV, Picasa, Fotonaut, Yahoo, and, I promise, before the end of next year,

Wikipedia. 17 All of these entities build encouragement on top of Creative

Commons licenses-licenses which we launched in 2003 and which over

the past six years have exploded in numbers so that there are probably more

than 150 million digital objects out there that are licensed under Creative

Commons licenses. This is a way to say to creators, "We respect the creativity

you have produced. We give you a freedom to exp�ess that respect to oth­

ers:' And it's an opportunity for us to say "happy birthday" to Creative Com­

mons because it turns six today. And you can say "happy birthday" by giving

money at https:/ /support.creativecommons.org/. But of course you can't sing "Happy Birthday;' because it is still under copyright, and we haven't cleared

those rights. That's what we need to do, and your support is really critical.

166 LAWRENCE LESSIG

I want to end with just one more story. I was asked to go the Association of

the Bar of the City of New York and speak in a beautiful room with red velvet

curtains and red carpet. The event had many different aspects. The room was

packed with artists and creators and at least some lawyers. All of these people

were there because they were eager to learn how they could create using digital

technologies, while respecting the law of fair use. The people who organized

this conference had a lawyer speak on each of the four factors in fair use for fif­

teen minutes, with the thought that, by the end of the hour, we'd have an audi­

ence filled with people who understood the law of fair use. As I sat there and

watched in the audience, I was led to a certain kind of daydreaming. I was try­

ing to remember what this room reminded me of. And then I recalled when I

was a kid in my early twenties, I spent a lot of time traveling the Soviet system,

seeing great halls where the annual conventions took place. I recognized that

the room had reminded me of the Soviet system's extraordinary tribunals. I

began to wonder, when was it in the history of the Soviet system that the sys­

tem had failed, and what could you have said to convince people of that? 1976 was way too early: it was still puttering along at that point. And 1989 was too late: if you didn't get it by then, you weren't going to get it. So when was it?

Between 1976 and 1988, if you could have convinced members of the Polit­ buro that the system had failed, what could you have said to them to convince

them? For them to know that this romantic ideal that they grew up with had

crashed and burned and yet to continue with the Soviet system was to reveal

a certain kind of insanity. Because, as I sat in that room and listened to law­

yers insisting, "Nothing has changed. The same rules apply. It's the pirates who

are the deviants:' I increasingly recognize that it is we who are insane, that the

existing system of copyright simply could never work in the digital age. Either

we will force our kids to stop creating, or they will force on us a revolution

around copyright law. In my view, both options are not acceptable.

Copyright extremists need to recognize that there is a growing move­

ment of abolitionism out there. Kids were convinced that copyright was for

another century and that in the twenty-first century it is just not needed.

Now, I am not an abolitionist. I believe copyright is an essential part of a

creative economy. It makes a creative economy rich in both the monetary

and cultural sense. In this sense, I'm more like Gorbachev in this debate

than Yeltsin. I'm just an old Communist trying to preserve copyright against

these extremisms-extremisms that will, in my view, destroy copyright as an

important part of creative culture and industries.

Now, you may not be concerned about the survival of copyright. You

may say, " Whatever. If it disappears, my machines will still run." If that's not

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enough to get you into this battle, let me try one last effort. What you know

is that there is no way for us to kill this form of creativity. We can only crimi­

nalize it. We can't stop our kids from creating in these new ways; we can only

drive that creativity underground. We can't make our kids passive the way I,

at least, was. We can only make them "pirates:' The question is, is that any

good? Our kids live in an age of prohibition. All sorts of aspects of their life

are against the law. They live their life against the law. That way of living is

extraordinarily corrosive. It is extraordinarily corrupting of the rule of law

and ultimately corrupting to the premise of a democracy. If you do noth­

ing else, after you've supported Creative Commons, you need to support this

movement to stop this war now.

NOTES

This chapter was transcribed and edited by Michael Mandiberg from a talk given at the Computer History Museum in Mountain View, California, December 16, 2008. Lessig gave versions of this stump-style speech to share his ideas on free culture and promote Creative Commons. He kept the basic structure of a series of stories, observations, and a call to arms but updated the examples in the later part to reflect the rapid changes in

digital culture. I have tried to preserve Lessig's powerful didactic, spoken presentation style, while streamlining the transcript to be effective in print form. The video of this talk is available at http://lessig.blip.tv/file/Is91892/ (accessed May 31, 2009). This chapter is licensed CC BY.

1. United States Congress, House Committee on Patents, Arguments before the Com­ mittee on Patents of the House of Representatives, Conjointly with the Senate Committee on

Patents, on H.R. 19853, to Amend and Consolidate the Acts Respecting Copyright: June 6, ,7, 8,

and 9, 1906 (Washington, DC: Government Printing Office, 1906), http:/ /books.google. com/books?id=zmEoAAAAMAAJ&printsec=titlepage#PPA24,M1 (accessed May 31, 2009).

2. Olmstead v. United States, 27 7 U.S. 438 (1928).

3· Amy Harmon, "Black Hawk Download: Pirated Videos Thrive Online;' New York Times, January 17, 2002, http:/ /www.nytimes.com/ 2002/01/17 /technology/ circuits/17 VIDE.

html (accessed May 31, 2009). 4· Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial Jukebox (Stan­

ford: Stanford University Press, 2003). s. Patricia Aufderheide and Peter Jaszi, "Untold Stories: Collaborative Research on

Documentary Filmmakers' Free Speech and Fair Use;' Cinema Journal46, no. 2 (2007): 133-139, http:/ /www.acsil.org/resources/rights-clearances-1/nps240. tmp. pdf (accessed July 20, 2010).

6. Soulja Boy, "How to Crank That-instructional video!;' YouTube, originally posted

April 2007, reposted August 2, 2007, http://www.youtube.com/watch?v=sLGLumsSyKQ (accessed May 31, 2009). At this point, Soulja Boy is still a selfrproduced amateur, without a label. Interscope signed him and made an official music video for the song: Soulja Boy,

"Crank That;' YouTube, August 9, 2007, http://www.youtube.com/watch?v=8UFIYGkROII

168 LAWRENCE LESSIG

(accessed July 20, 2010 ). The premise of the official video is to reenact the discovery of

Soulja Boy on YouTube: the hip-hop producer Mr. Collipark, who signed him to Inter­ scope, is trying to understand the'Soulja Boy phenomenon, after watching his children dance and surfing You Tube and seeing all of the videos that build on each other. He

instant messages with Soulja Boy, eventually signing him to a record deal. 7. Ironically, after Interscope signed the artist, some of these fan videos have been

subject to DMCA takedowns: see Kevin Driscoll, "Soulja Boy, Why Take My Crank Dat

Video Down?;' response video posted on YouTube, May 31, 2009, http://www.youtube. com/watch ?v=wkeaxXLijhs.

8. A tiny sampling of the Soulja Boy meme includes BEA5T ED, "Soulja Boy- Crank Dat Finocchio;' You Tube, January 5, 2008, http:/ /www.youtube.com/

watch?v=aUM6NLeWQDc (accessed July 20, 2010); djtj1216, "Dora the Explorer

(Crank Dat Soulja Boy);' YouTube, July 13, 2007, http://www.youtube.com/ watch?v=vgMgLjMghuk (accessed July 20, 2010); Eric Schwartz, aka Smooth-£, "Crank That Kosha Boy;' You Tube, December 5, 2007, http:/ /www.youtube.com/ watch?v=9oYDBtCN-hk (accessed July 20, 2010); Barelypolitical, "Obama Girl . . . Does Soulja Boy . . . with Mike Gravel;' You Tube, May 9, 2008, http:/ /www.youtube.com/ watch?v=RkZwF96IOyA (accessed July 20, 2010); Jordan Ross, "Crank That Soldier Boy;'

YouTube, July 21, 2007, http://www.youtube.com/watch?v=7Z E20zguWHo (accessed July 20, 2010).

9· 236.com, "Synchronized Presidential Debating;' You Tube, October 28, 2008, http:/ I www.youtube.com/watch?v=wfd5g8Y_Jqo (accessed May 31, 2009).

10. will.i.am et al., "Yes We Can:' YouTube, February 2, 2008, http://www.youtube.com/ watch?v=jjXyqcx-mY Y (accessed May 31, 2009).

n. For example, think about how differently this video treats editing and remix than

the famous "We Are the World" video of the previous generation. 12. Johan Soderberg, "Read My Lips: Eternal Love;' 2001-2004, http://www.soderberg.

tv (accessed July 20, 2010).

13. Editor's Note: Not only is this labor unpaid, but it is done by customers who pay for the privilege to do this unpaid work; customers are charged a fee for monthly virtual land use, which we might call rent.

14. For more on the Electronic Frontier Foundation's alternate schema, see http:/ I www.eff.org/wp/better-way-forward-voluntary -collective-licensing-music-file-sharing (accessed May 31, 2009).

15. See http:/ /www.starwars.com/welcome/about/mashup-copyright (accessed May 31, 2009).

16. Om Malik, "Web 2.0, Community & the Commerce Conundrum;' GigaOM.com, October 18, 2005, http:/ /gigaom.com/2oo5/Io/I8/web-2o-the-community-the-commerce­ conundrum/ (accessed May 31, 2009).

17· In May 2009, the Wikipedia Community voted to switch from the GFDL license to a Creative Commons license: http:/ /meta.wikimedia.org/wiki/Licensing__update/Result (accessed May 31, 2009).

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