Peter Krogh's Rebuttal to Our Post on Lawrence Lessig
In the interests of providing a forum for discourse on this subject, from time to time we offer differing and alternative viewpoints to be put forth, and to that end, Peter Krogh, former ASMP national board member, author of The DAM Book, Digital Asset Management for Photographers, and a longtime colleague of mine, has sent along an alternative viewpoint to our post titled "Lessig's Kool-Aid: Proposed New Norms - Don't Drink", which was a follow-up to our original post - "Thank God for Disney, The Wire Services, and the Record Labels!", in which we take great umbrage with Lawrence Lessig's position that was essentially encouraging wide-spread theft of intellectual property.
Following Peter's rebuttal, we'll offer a short response, and then the floor is open in the comments.
(Continued after the Jump)
John,
At the risk of seeming to be allied with the antichrist, I would like to point out that you are missing a large part of Lessig's point. And one part of it is undeniable - laws have not caught up with changing technology and cultural practice.
If you have not seen it, you need to watch RIP - A Remix Manifesto. It's freely available on the interwebs. It makes a pretty convincing argument that copyright law is broken. I don't agree with all of it, but I do agree with some of it.
It's clear that copyright law is being written for the large copyright aggregator, not the independent creator. The US registration scheme has long been written to protect the interests of big media while it works against the independent creator.
I believe that one of the difficulties we have is that photographers have cast their lot with big media, and our interests do not coincide. As a rule, we don't have the legal firepower nor the long-term interest in IP protection to warrant support of the same policies.
By taking the side of copyright aggregators, we say to the world, yeah, we are on the side of the assholes (as many people perceive them). But we are not Warner music - collecting royalties on "Happy Birthday" 100 years later. We have an entirely different set of realities, needs and priorities.
Pretending that our interests coincide with those of big corporate copyright aggregators will not be effective for us, in the long term.
I'm definitely not saying that appropriation from the independent artist without compensation is okay. I don't think Lessig is saying that either. I think he is talking about big media - remixing works that have become part of the cultural fabric, and have already earned a generous return.
Of course this is a tough line for us to walk. I don't want to say any appropriation is simply okay. But are we really on board with supporting a $400,000 fine for downloading a handful of MP3 files from Napster? I, personally, don't think that's a reasonable punishment for the equivalent of shoplifting a CD from Walmart.
You can say "it's the law", but the law didn't get there by itself. It got there because big media made it happen. And they pushed for that law instead of one that would really be beneficial to the independent creator - such as the right to sue for copyright infringement in small claims court, rather than federal court. (This is a place where the interests of the creator and big media are in direct confrontation).
I think what Lessig is saying is that laws have not caught up with the reality of the digital age. The deficiency of those laws gets a lot more obvious once you take your perspective overseas. A licensing scheme that seems plausible in the USA is laughably unrealistic in most of the rest of the world.
I recently spoke with a software company representative who acknowledged that there is simply no way that they could mass market in India or China. The value proposition is entirely broken. I have seen this myself in Africa.
I certainly don't have the answers (in many cases, there simply are no good answers at the moment). And I don't think Lessig has all the answers either. But until we accept some of the nuances and complexities of the entire situation, we won't even start down the road to a solution that works for the independent creator.
As I said earlier, I suggest taking a look at Brett Gaylor's film RIP. It really helps to frame this as a more complex issue
Peter Krogh
Author, The DAM Book, Digital Asset Management for Photographers
Second Edition May, 2009
www.theDAMbook.com
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We respond:
So, let me follow your logic on this one, see if I get it wrong:
The laws against the theft of intellectual property should be updated to allow for more efficient enforcement, tracking and compensation.
So, in the mean time, people should be encouraged to steal photographs from photographers, and photographers should be encouraged to throw away their IP or to allow unauthorized and objectionable uses of their creations?
Anyone should be able to go to your website, take photographs, use them, "remix" them, and do so without your knowledge or permission. Is that correct?
Really?
If not, what position would you take on people who visit your website and 1) want to use a photograph without your permission, or 2) take a photograph and remix it without permission?
Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.
11 comments:
If Krogh or Lessig believe in this "remix" theory, why dont they do it with their own work. Where is this entitlement coming from? Leave us creative people alone, leave our work alone.
The challenge of the new media and copyright are certainly a reasonable place to start to look at changes that may need to be made.
Yes, I agree there are some problems with it as it currently is. And enforcement becomes terribly difficult.
I have two points to make on this.
1. Why is it anyone's 'right' to use anything they didn't purchase or create? I understand wanting to use it, but I do not understand the unilateral 'right' to it that I now hear being soveriegn. If someone else owns it, they own it.
Of course it may suck that someone gets a royalty from "Happy Birthday" - so find an alternative and they will at some point come around. "Well, that's hard to do."
OK... yeah. So? It currently BELONGS to someone else. It is NOT mine to use as I see fit because I want to and I want to do it now.
Second Point:
I have read all the nice, neat explanations of what CC is supposed to be. And, shockingly, I can find some agreement. If someone wants to use CC, I don't care. I. Don't. Care.
Just as I want to protect MY work, and maintain my autonomy, I do not want to tell someone else what they MUST do. If a photographer wants to give away their art and work product, it is not MY business.
But at the same time, I read what the proponents say, and I watch what they do.
I have seen the statements about copyright being the worst thing ever, and 'just take it and use it' and 'make it tedious for the owners and they may give up'...
Does that sound like the mild, simple to understand CC? No. It Doesn't.
That is the problem I have. Camel, nose, tent sort of thing. If I were to see the proponents of CC sticking with the people who are interested in that stuff I wouldn't be so adamantly arguing it.
You may see in my writings (although, since I posted my views, my Lighting Essentials site has been hacked 3 times... costing me a lot of money - coincidence? Yeah... sure), and you will notice that I am NOT against the CC as it is written, I am against CC as it is being propagated as a MUST CHANGE instead of 'hey, here's another way for those who don't care about traditional copyright.
I am not interested in what people say... I watch what they do. That may make me a bit of a luddite in these days of spin and hypocrisy, but it has served me well.
And it will serve you well to become educated in what is being said by the CC proponents - when they declare that copyright is evil, and that it should be ignored and treated as a joke in order to 're-educate' the people.
And, while I am totally bored by the old 'mean corporation evil bastards' rhetoric, there is a bit of truth there. So explain to me why so many big 'eeeevil' corporations are behind the CC movement? They see something there.
In the end... If I make something, it is not automatically fodder for someone wanting to 'remix' some other persons song. It isn't. It is mine. I may or MAY NOT let someone use it. Ask.
That part of the world and interaction between artist and user has not changed... in fact, I would argue it is far easier to contact me today than it was 20 years ago.
That is, when my site is actually up and not hacked.
Ask yourself this... if those who have this supposed grand idea are so convinced that it is wonderful, why are they not willing to dialog with instead of shutting down their detractors.
Oh yeah... they want it. They want it NOW. NOW NOW NOW.
I remember that attitude. I have three children.
The whole purpose of copyright is to engender creativity by balancing two sets of interests: those of the creator(s) and those of the public. The public agrees to protect the creator's right to benefit from his or her work and in exchange, the creator reveals his/her work (through a variety of means, including sale). It strikes me that the current state of copyright does not do a good job of maintaining this balance. Many, if not most, content creators are denied much of the benefit of their labor and the public is prevented from benefiting from trans-formative works that drive the culture forward. Rather than tying ourselves to the sinking ship of big media or to the legally grey world of Lawrence Lessig, we as content creators should be looking for solutions that bring copyright back into balance. I want to live in a world were I can gain from my creations, but in which I can also gain from the creations of re-mix artists like Girl Talk (and where the artists being remixed gain, as well). There has to be some set of solutions that enable that world - I just don't know what they are yet.
One other aside, why are all forms of media treated by copyright as the same, when many are fundamentally different. e.g. The needs and concerns of a photographer are fundamentally different from those of a singer. The photographer is more likely to be commissioned by a subject while the singer is able to sell tickets to performances. Why should the outputs of those endeavors be treated exactly the same?
"Many, if not most, content creators are denied much of the benefit of their labor and the public is prevented from benefiting from trans-formative works that drive the culture forward."
Well, that may be their choice. It may be strategic. It may be that they do not wish to participate.
That should be their right. But more and more I hear about the 'trans-formative work that drives the culture forward' argument used as a hammer to strike those who may not be that interested in involving themselves in trans-formative works.
So called 'trans-formative' works may be seen as important to some, but maybe not to others. I should not have ANY obligation to be involved with 'trans-formative' works.
And if I should decide that I want to be involved, I can take a cadre of images, import them into one or two of the millions of 'sharing' sites on the web and license them CC.
The argument seems too specious to me. It currently is not very hard to give one's work away... but we keep hearing about how difficult it is and how we need to move the culture forward.
I am quite sure the culture can move forward without the necessity of removing someone's IP from them.
Let those who want to play, play. Leave the others alone. And if this solitary stance by the artist means that they didn't help with the uberimportant driving of the culture forward, he/she will suffer their own consequences.
The trade organizations are standing in a deep pit, alongside their members. The organizations didn't dig that pit, but regardless, they are in deep. The organizations have a choice.
They can either dig that pit deeper, or they can try to climb out. And they are trying.
In trying to climb out, they must choose between several ropes that are hanging into the pit. They can't see to the top of the pit, but some of those ropes are attached to nothing, and very few of the ropes are attached to anything solid. Most of the ropes are attached to various buckets -- mostly filled with rattlesnakes, bowling balls, alligators or hand grenades.
So, which rope will it be?
Photographers and their organizations need to be careful about grasping at ropes that are so fat that only a big business can climb them. Or ropes that will only work for music, or software, or written content.
Don't get caught up in the rhetoric. Our issue is specific to our medium and the way that photography is used and consumed, which is different than any other.
The fact that copyright law requires revision doesn't mean that photographers' organizations should promote that revision to their members and to the general public.
I guarantee you that the next major revision to copyright law will bring far more change than you can imagine, and that virtually all of the revisions will harm small rightsholders like photographers. Be careful.
Yes, registration is a bitch. But the fact is that without a registration, US photographers receive pretty much the same benefits and protections afforded to photographers in most other countries.
The fact that photographers don't register is no longer a question of hardship. Thousands of photographs can now be registered online in 10 minutes for $35. Gimme a break. Photographers spend more than that on coffee every week. Registration is now an acceptable burden, and it will become eaiser with time.
If you believe that removing the registration option is going to improve anything, you are wrong. You might be able to convince congress to remove the registration option, but this creates a hornets nest of issues and even removes certain protections currently enjoyed by photographers who register, like the rebuttable presumption of valid copyright ownership. The removal of the registration requirement is not going to make statutory damages available to all. It is most likely to result in the removal of the statutory damages remedy, permanently, along with making attorneys fees a thing of the past. Woops. Wrong rope. Bucket o' bowling balls.
That other rope -- the red velvet one embroidered with "CC" -- that one with a professor at the top, beckoning us to climb up -- that rope is attached to a "re-mixed" bucket, filled with gators AND bowling balls AND snakes AND grenades. CC is a very positive development for amateurs who wish to use copyright to share their works. Urging professionals to climb that particular rope is industry suicide.
The trade organizations are standing in a deep pit, alongside their members. The organizations didn't dig that pit, but regardless, they are in deep. The organizations have a choice.
They can either dig that pit deeper, or they can try to climb out. And they are trying.
In trying to climb out, they must choose between several ropes that are hanging into the pit. They can't see to the top of the pit, but some of those ropes are attached to nothing, and very few of the ropes are attached to anything solid. Most of the ropes are attached to various buckets -- mostly filled with rattlesnakes, bowling balls, alligators or hand grenades.
So, which rope will it be?
Photographers and their organizations need to be careful about grasping at ropes that are so fat that only a big business can climb them. Or ropes that will only work for music, or software, or written content.
Don't get caught up in the rhetoric. Our issue is specific to our medium and the way that photography is used and consumed, which is different than any other.
The fact that copyright law requires revision doesn't mean that photographers' organizations should promote that revision to their members and to the general public.
I guarantee you that the next major revision to copyright law will bring far more change than you can imagine, and that virtually all of the revisions will harm small rightsholders like photographers. Be careful.
Yes, registration is a bitch. But the fact is that without a registration, US photographers receive pretty much the same benefits and protections afforded to photographers in most other countries.
The fact that photographers don't register is no longer a question of hardship. Thousands of photographs can now be registered online in 10 minutes for $35. Gimme a break. Photographers spend more than that on coffee every week. Registration is now an acceptable burden, and it will become easier with time.
Registration is optional. If you believe that removing the registration option is going to improve anything, you are wrong. You might be able to convince congress to remove the registration option, but this creates a hornet’s nest of issues and even removes certain protections currently enjoyed by photographers who register, like the rebuttable presumption of valid copyright ownership. Don’t think that the removal of the registration requirement going to make statutory damages available to all. It will not. It is most likely to result in the removal of the statutory damages remedy, permanently, along with making attorneys fees a thing of the past. While you’ve got the attention of the legislators focused on copyright reform, they will almost certainly expand the definition Fair Use. Woops. Wrong rope. Bucket o' bowling balls.
That other rope -- the red velvet one embroidered with "CC" -- that one with a professor at the top, beckoning us to climb up -- that rope is attached to a "re-mixed" bucket, filled with gators AND bowling balls AND snakes AND grenades. There is nothing intrinsically wrong with remixing, provided that remixers seek and obtain permission to use the property of others, OR use that property within the boundaries of Fair Use. CC is a very positive development for amateurs who wish to use copyright to share their works. Urging professionals to climb that particular rope is industry suicide.
First let me note that while I was on the ASMP board, these opinions are my own, and don't reflect any official ASMP position.
>So, let me follow your logic on this one, see if I >get it wrong:
>The laws against the theft of intellectual property >should be updated to allow for more efficient >enforcement, tracking and compensation.
>So, in the mean time, people should be >encouraged to steal photographs from >photographers, and photographers should be >encouraged to throw away their IP or to allow >unauthorized and objectionable uses of their >creations?
Yes, you got it wrong.
I did not say that, nor did I intend to imply that. I meant just what I said. Copyright law is largely broken, and it is tilted massively in favor of the corporate copyright aggregator, and against the interest, in many cases, of the independent creator.
If we can't agree on that, then there is pretty much nothing to discuss. If we can agree, then the question is, "what do we do about it?"
I also think that there is a fundamental difference between the interests and economies of music and feature films and of photographs, as Colin points out.
I think that understanding the divergent interests of the various players is important in considering what to do. I fear that by taking the side of corporate interests, we risk becoming roadkill.
>Anyone should be able to go to your website, take >photographs, use them, "remix" them, and do so >without your knowledge or permission. Is that >correct?
>Really?
No, not really. Not what I said, not what I meant.
>If not, what position would you take on people >who visit your website and 1) want to use a >photograph without your permission, or 2) take a >photograph and remix it without permission?
I guess that in order to have any kind of conversation about this, it would be important to first agree on the points above.
Would you, hypothetically, be willing to discuss lopping off 50 years from the term of copyright in exchange for the ability to more easily sue for infringement? (I'm not advocating this as a position, just suggesting a possible compromise that might work in the interest of photographers and the public, but would be fought tooth and nail by corporate copyright aggregators.)
_________
As to Remix, if you are interested in discussing it at all, you really should watch Brett's movie (and yes, your can download it, remix it, and publish your own version).
Remixing has been around forever (Mickey Mouse was a remix of a popular film character, Steamboat Bill.) Salvador Dali was a famous remixer, of course. The Rolling Stones and Led Zep built quite a number of tunes on existing music.
_______
Don, as to your blog being hacked, I would not assume that it was pointed at you specifically. This is a widespread problem, and is most likely done for economic gain rather than ideology. I know what a pain it is - it has happened to me.
Peter
Peter -
The presumption that we will have any bargaining chips in the reformation of copyright law is, at best, extremely naïve. We couldn’t trade 50 years of the copyright term for a potato, much less for “the ability to easily sue for infringement.” In the big picture, we aren’t even at the bargaining table. They will simply TAKE that 50 years, and give us nothing. Your comment indicates that you are operating on the opinion that your own images will be worthless 25 years after your death. That may be true, and you are certainly entitled to your opinion about your own work. Many of us create images of lasting value, and we invest in the creation of those images as a direct result of the protections afforded us by copyright law – namely, the right to generate income from our work, over time, for our families and heirs.
And, what, exactly do you mean by “easily sue for infringement.” ? If you are referring to small claims court for copyright infringement, it’s pure hogwash – a ridiculous concept, because, without the discovery process, there is no way in hell that a photographer would be able to determine the extent of an infringement - other than the one (or few) they stumbled upon, or to calculate actual damages, or to successfully claim disgorged profits, etc, etc, etc.. The word “Easy” and “Sue” only go together on 14th street in downtown DC. Pushing for copyright reforms (as you are now doing it) is a fast track to the loss of the few remedies photographers have at their disposal today.
Peter you appear to have sipped WAY too much of the "Lessig Kool-Aid".
Further, you still haven’t answered my question about allowing you others to remix your own photographs. Dance as you might, I’m not letting you sidestep that one, as it is central to your position.
So, you watched a slick video and now you’re Mr. Remix? Watch out for those shiny pennies on the sidewalk. Bend over to pick one up, and you’re likely to get kicked in the ass, or worse. Now that you are taking it upon yourself to extolling the virtues of remixing and offering up our rights to the public on a silver platter, will you post, on the home page of your website, a creative commons license to all of your photographs, allowing your remixing friends to take all of your work and go to town with it? Will you vow to forgive any and all infringements of your work by those who wish to repurpose it? If the answer is no, perhaps you should change your position.
John,
#1 -Most important, *you* sidestepped the biggest issue. Do you agree that our interests and the interests of big media are frequently at odds?
#2 I did answer the question about infringing my images. I'm not cool with it. If your question is "what to do about it?" then the answer always depends on details of the infringement.
#3 - As to "Your comment indicates that you are operating on the opinion that your own images will be worthless 25 years after your death." I think no such thing. I believe that I have a body of work that will be of value for quite some time (maybe only to a small number of people - maybe to a large number). But extracting economic value is a different can of worms.
I'd like to think that my kids will be able to collect royalty checks on that work long after I'm dead, but I think I'd probably be fooling myself to expect that. I've consulted with several people who are attempting to market a deceased relative's photography, and the odds of success are extremely low, even for very successful photographers.
I bet way less than 1 in 1000 working photographers' work produces posthumous income that exceeds the cost of maintenance and marketing. It's hard enough to do this while you are alive, much less when you're dead.
In fact, I'm contemplating putting a large chunk of my work into the public domain at some point (after I'm dead). I'd rather see it live on than to be lost.
>So, you watched a slick video and now you’re Mr. Remix?
John, I don't want to talk about this point until you have watched the movie or somehow get a better understanding of what remix is all about. I don't think you understand what remix really is, or how long it has been a part of the creation of art (hint:forever). There are other places you could go to understand this, but this is one that helped me understand the issues more clearly.
You can pretend it has no validity, or that it can be legislated away (good luck with that), or you can try to understand it from the other person's perspective.
Don't be so attached to your ignorance. It makes you less effective.
Unfortunately, it's this kind of willful ignorance, along with strong-arm legal tactics in copyright law extension - that drives people like Lessig to recommend law-breaking to force the issue.
You *can* be in support of the artist's right to retain copyright, but not be in support of the *perpetual copyright law* we currently have. It, along with some pretty draconian remedies, are recent inventions that were passed with no public support or even public prior knowledge. (That is to say, undemocratic).
And, worst of all, they generally don't support the interests if the independent creator.
#4 - >The presumption that we will have any bargaining chips in the reformation of copyright law is, at best, extremely naïve.
Well, if your position is that nothing we do will have any effect on anything that happens in this arena, then it's all pointless, right?
I think that what we do can make a difference, although I don't think our level influence is very high.
And even if the only effect is to say that we fought the good (but losing) fight, I think it does matter what we stand for.
The thing you seem to be unable to say is that sometimes we should be standing in opposition to big media. I know you're a die-hard republican, but big business is not always right.
Peter
Peter Wrote "I don't think you understand what remix really is, or how long it has been a part of the creation of art (hint:forever)"
Because someone else has broken the law for so long does not mean I should be a willing victim.
Peter wrote "you can try to understand it from the other person's perspective."
We do not have to understand it from a thief's perspective. They want to steal our work for their own gain. I highly doubt I would be able to use their music in any type of broadcast without due compensation.
Peter Wrote "Unfortunately, it's this kind of willful ignorance, along with strong-arm legal tactics in copyright law extension - that drives people like Lessig to recommend law-breaking to force the issue. "
Did it ever occur to you that the strong-arm legal tactics are in place to protect the copyright holder? Lessig is at odds with a law that does not allow him or others to steal without repercussions and that is why they are do bothered.
Peter Wrote "I know you're a die-hard republican, but big business is not always right."
This stereotypical attitude shows that Peter has lost the argument based upon basic common sense and reason, subsequently a semi-personal attack followed.
Because someone else wants to give away their creations for free does not mean everyone else must follow suit. People need to mind their own business.
Peter Wrote "I don't think you understand what remix really is, or how long it has been a part of the creation of art (hint:forever)"
Because someone else has broken the law for so long does not mean I should be a willing victim.
Peter wrote "you can try to understand it from the other person's perspective."
We do not have to understand it from a thief's perspective. They want to steal our work for their own gain. I highly doubt I would be able to use their music in any type of broadcast without due compensation.
Peter Wrote "Unfortunately, it's this kind of willful ignorance, along with strong-arm legal tactics in copyright law extension - that drives people like Lessig to recommend law-breaking to force the issue. "
Did it ever occur to you that the strong-arm legal tactics are in place to protect the copyright holder? Lessig is at odds with a law that does not allow him or others to steal without repercussions and that is why they are do bothered.
Peter Wrote "I know you're a die-hard republican, but big business is not always right."
This stereotypical attitude shows that Peter has lost the argument based upon basic common sense and reason, subsequently a semi-personal attack followed.
Because someone else wants to give away their creations for free does not mean everyone else must follow suit. People need to mind their own business.
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