Downloading & Freeloading
Remix: Making Art and Commerce Thrive in the Hybrid Economy
by Lawrence Lessig
Penguin. 352 pp. $25.95

It is not easy having a calm conversation about media these days. The powerfully disruptive forces of technology are remaking the landscape, producing enormous winners and once-mighty losers, with the full impact on the culture, for good or for ill, yet to be determined. Consider that the largest media company in the world—Google—does not produce content; Google’s revenues are from advertising, and yet, in a marker of the times, its home is not on Madison Avenue but in Silicon Valley. Meanwhile, the recorded-music industry has been suing its fans for making digital copies of songs, even as the industry itself has yet to find a business model that works. Then there is the movie industry, which fears being next as it becomes widely possible to download massive streams of video. Television broadcasters, for their part, are not sure whether the web is friend or foe.

What with all this creative destruction in the air (to borrow the apt phrase of the great economist Joseph Schumpeter), it is understandable that executives of traditional media companies have had little time for a sharp critique of what they regard as their most fundamental property right—their right, that is, to the intellectual content of their music, films, and video. Yet this right itself, protected under the traditional laws of copyright, is very much under siege. The most potent bombs have been thrown by Lawrence Lessig, a law professor, litigator, and author.

In previous books, Lessig has criticized Congress for extending the term of copyright protections from the original fourteen years, renewable for another fourteen, to today’s life-of-the-artist plus 70 years. In Remix: Making Art and Commerce Thrive in the Hybrid Economy, he undertakes to show how, in light of today’s digital technology and its empowerment of consumers, the current copyright regime no longer makes sense at all.

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Historically, in Lessig’s reconstruction, we have moved as a culture from a “Read/Only” era, characterized by one-way creativity from artist to consumer—with the latter enabled only to listen to a recording or watch a film—to today’s “Read/Write” era in which a listener or viewer can not only listen and watch but copy and share—and often, in the process, create new versions of the artist’s work. These creations are what Lessig calls “remixes.” As an instance, he offers the story of a mother who videotaped her eighteen-month-old son dancing to the beat of a song, “Let’s Go Crazy,” by the pop star Prince. She then posted about 30 seconds of the resulting footage on the video-sharing website YouTube so that amused relatives (and anyone else in the world) could watch.

Current law largely prohibits such activity. And so, lawyers for Universal Music, fearing that they would be giving up a mile if they failed to stop an inch, threatened the mother with copyright infringement and a $150,000 fine. Their argument rested on the proposition that her use of Prince’s wholly owned property detracted from its monetary value. 

Yet in many if not most cases, Lessig argues, such remixes in fact add financial value to the content owner by promoting his work and creating deeper engagement with consumers: just imagine the benefits that could accrue from being endorsed on YouTube by a jolly toddler. For him, then, the question boils down to one of permitting people to make use of music and videos for such incidental purposes while still protecting the valid economic rights of artists and the companies that represent them.

Unlike some Internet activists, Lessig would not abolish copyright outright. He does, though, make a strong case for doing away with the winner-takes-all rigidities of the current regime. In this connection, he usefully points out that it has long been permissible to quote from books or articles for the purposes of reviewing and similar activities. Over the decades, a reasonably clear “fair-use” exception has been built into the law. But why should I be allowed to quote passages from Lessig’s book in COMMENTARY while young people (many preferring newer media to text) are blocked from remixing, or quoting from, television, film, and music?

More broadly, Lessig asks, “What does it mean to a society when a whole generation is raised as criminals?” For the plain fact is that tens of millions of songs have been downloaded, especially by young people, without payment. Their behavior is against the law, but enforcing the law has proved impossible. In the meantime, record companies, even as they have tried to limit this activity (since they cannot stop it), are themselves eagerly looking for ways to take advantage of current technology by using the web to market their songs and to identify new talent deserving of traditional recording contracts.

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What would a new accommodation between content owners and consumers look like? Lessig acknowledges that he does not have a full answer to this question. Although he describes himself as a “typical liberal law professor,” he takes economics seriously and is alive to market considerations. The problem, for him, is that traditional copyright law is quite dead to those same considerations, having still not absorbed the fact that much innovation these days no longer follows the templates of customary business practice.

The Internet itself, after all, was built largely on the free labor of many anonymous programmers, just as the open-source software industry has been built by programmers who voluntarily add to existing code, usually for no personal gain, with only some rights ever being claimed or exploited for profit. Linux software, for example, was largely developed by volunteers, often with the encouragement of their day-time employers who found ways to use the product. Lessig predicts much more of this sort of combination of part-open and part-protected innovation as companies look for ways to combine their own efforts with those of their consumers.

Economically all this may sound counterintuitive, but Lessig is correct in suggesting that it is how capitalism has worked during times of great shifts. In the Industrial Age, inventors freely shared designs for high-pressure engines and furnaces to process ore into iron, expecting that others would improve on these techniques to help build new industries. As Lessig writes, “innovators reveal not as an act of charity, but as a strategy to better returns.”

Lessig is also right to characterize copyright as a monopoly power, conferred and enforced by government. Sounding at times less like a liberal law professor than like an anti-big-government conservative, he insists that what we need most at this moment is “more humility about regulation”:

For most of the history of modern government, the struggle was not about what was good or bad; the struggle was about whether it was possible to imagine government effecting any good through regulation. . . . Recognizing the uselessness of certain kinds of rules led governments “to avoid regulation in obvious areas, or to deregulate when they saw their regulation failing. These are expressions of regulatory humility, a habit of mind for most of human history. We’ve forgotten these limits of humility. Wherever there is a wrong, the first instinct of our government is to send in the legal equivalent of the Marines.

In the spirit of constructive reform, Lessig offers several concrete proposals. Thus, he would exempt non-commercial use altogether: the eighteen-month-old could go back to dancing to Prince on YouTube. He would also restore the earlier copyright process that required holders to re-register their works periodically; this would circumvent such common problems as books going out of print but still being unavailable because of long-term copyright protection. Most ambitiously, he would redefine the concept of copyright protection itself, applying it to the use of content rather than simply to the act of copying. (This would protect the commercially exploitable uses an owner had in mind while, for example, permitting a new technology to be built on an old one.) And he would decriminalize file sharing, legislating instead a tax or royalty arrangement to compensate owners.

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An activist as well as an academic, Lessig has actually devised a way of helping people opt out of the government copyright regime altogether. In 2001, as he mentions in passing in this book, he founded the Creative Commons, a licensing system now used by millions of individuals who wish to reserve only partial rights for their writing, photos, blogs, and other works. Most licenses under this approach restrict commercial use but permit noncommercial use and also permit derivative products to be created (often on the condition that these, too, will be freely available). While such contractual arrangements may not work for some media—the makers of a blockbuster Hollywood film understandably want much tighter control—Lessig’s innovation has encouraged the emergence of exactly the kind of hybrid business model that the music and movie industries desperately need.

It is unfortunate that a book like this one is destined to be read mostly by people who are already deeply engaged in the details of technology, law, and their intersection—geeks, congressional staffers, music executives, and the like. To some extent, indeed, it suffers from the defects of all such books, including repetitiousness, occasional pedantry, and a certain air of inside-dopesterism. But in truth the debate over the proper scope of copyright is as broad as the debate over civil liberties in general.

Private property is a core individual right—and is key to a smoothly functioning economy. Our digital age has made it easy to share, quote, and combine private intellectual property in unprecedented and unpredictable ways. In such an age, surely the best approach for government regulation is, within obvious limits, to leave people free to find new methods of operating that will simultaneously protect and, ideally, enhance their legitimate economic rights. At a minimum this means that, as Lessig concludes, “We all must be less optimistic about the potential of government to do good.”