Friday, October 22, 2010

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)

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


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?


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.

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Sunday, October 17, 2010

Lessig's Kool-Aid: Proposed New Norms - Don't Drink

Mr. Lessig, Professor of Law at Harvard Law School, and the Director of the Edmond J. Safra Foundation Center for Ethics, has responded to criticisms of his position which essentially recommends wide-spread theft of intellectual property by re-mixers (and the law will eventually catch up and relent that doing so is ok), by using the time-honored defense of the beleaguered politician, suggesting what he was cited as having said was done so "without making clear the context within which I was speaking." Ok, let's first let readers listen to, in the entirety provided by The Creators Project, what Mr. Lessing actually said, because it's on embeddable video (and thus, allowable, according to Vimeo). So, without further ado, Mr. Lessig, in his own words:

(For you RSS readers, here's the link to see it on Vimeo)

Ok, so, let's look at what we said, in our last post:

"[Lessig] attempted to decree that the thieves of the world "can teach this culture how this form of expression is essential." By "this form" he meant, the mash-ups and repurposing of others intellectual property, and he goes on to say "When we've taught the culture, the law catches up..."
Hmm, that's spot-on accurate. That's exactly what he was saying. No contextual error there.

We also cited him as saying:
"We need to stand up and acknowledge what we're doing, give people credit, and thank them, but not ask permission"
What he said, if we are to actually believe the video showing the words coming out of his mouth, through the sound system, and recorded on video, is:
"Now, I think it's time for us just to stand up and be brave enough to acknowledge what we're doing. And acknowledge and respect the people we're building upon by saying it's this person's work I am using, and thank you for creating that work, but I'm not asking permission to remix that work."
Lessig spoke of this in relationship to how the hip-hop artists of the 80's and 90's were advised by corporate lawyers to hide whom they were remixing - why? Because it was illegal then (as it still is now) to do it. The context was essentially telling people that if you're using someone elses' creativity which they have transformed into intellectual property, whereas before people were hiding that violation of copyright, now, Lessig seems to be saying "stand up and be counted as someone who's taking others creative works, and give them credit when you repurpose it, but don't ask them for permission." Not withstanding the slight difference between the quote we cited from another blog, and the actual transcript of what he said, the sentiment is the same.

The last thing we quoted him as saying was:
"Respect in the 21st century is acknowledgment. When you use someone else’s work, you give them credit."
What was said was:
"Now we don't respect them in the old fashioned way, which means calling their lawyer or having your lawyer call their lawyer to get permission to include their stuff in your stuff, that's not respect in the 21st century. Respect in the 21st century is acknowledgement. it's to say, that when you use somebody else's' work, you're upfront about it. At the end, in the credits, somewhere, deep down, you clearly state I remixed, or I used this."
Hmmm, the context looks pretty much the same there, Mr. Lessig.

How about this one:
"When we've taught the culture, the law catches up..."
What he said, was:
"doing this more, acknowledging who we're building upon, and demanding the artist be respected as an artist, we can begin to teach this culture how this form of expression is an essential 21st century form of expression. We can encourage a much wider range of people to do it and celebrate it, and when we have done it in culture, then the law catches up."
And by "this", he was referring to his three (not four, as he suggested) points:
  1. Spread re-mixing of others creative works far and wide, in every context possible. Not just on video sites, but in schools, public performance spaces, "in every single place we can."
  2. Respect the work of others in a way he proposes to newly define "respect". By giving credit "deep down" somewhere, "in the credits", but not asking permission, nor, it seems, paying for that respect.
  3. Building environments where the re-mixer owns the rights to the re-mix. (But not the underlying source material, he cautions.)
So, let me get this straight - we need everyone to do as much re-mixing as possible without asking for permission from those whose work we remix and rights we violate, and then build a paradigm where the remixer has rights that should be respected? And, eventually, Congress and the law will have no other choice but to accept this new paradigm?

Thankfully, no.

Now, Mr. Lessig has presented his defense. In his response, on the Huffington Post, he write in an article titled "The "Imbecile" and "Moron" Responds: On the Freedoms of Remix Creators", he revises and then re-outlines his position - this time, intended for a much broader audience.

Now, Mr. Lessig, it's time for your cross-examination.
(Continued after the Jump)

Mr. Lessig states that the frame for his presentation was having just watched 50 remix videos for a video contest, and that he was to address that kind of creativity. Lessig first points to how the competitors must have done more than just "grab" the work of others, but rather, they must have been "using the work of others in a way that is transformative...", and Lessig, if his professorship at Harvard Law School is worth it's salt, must know that setting forth this notion of using the copyrighted work of others in a transformative way - compilations and re-mixes is often specious, at best. Transformative uses, according to Stanford University (here), is "any copying of copyrighted material done for a limited and "transformative" purpose such as to comment upon, criticize or parody a copyrighted work." With transformation, at least as it pertains to Copyright, it means that the use is in the public's interest, and as such, does not infringe on the copyright holder's copyright. So, hmmm, the famed Zapruder film of JFK's assassination - that old footage seen from a hill overlooking the motorcade as it passed by - the public's interest is so great that all showings of that film are transformative because of the public's interest? Hmmm, I think I know of at least one great lawyer who has demonstrated that this is false, in multiple courts of law.

Lessig then goes on to provide a history lesson on "fair use", the siren song of many an infringer. I agree that fair use is a critical cornerstone of copyright, and the ability to cite portions of a book, motion picture, or even a song (lyrically, or instrumentally) is important. When Lessig writes in his defense "even the most vigorous defenders of copyright recognize the critical importance of 'fair use' to our copyright system", I would fall into that category.

Let me make that PERFECTLY CLEAR again - I agree that fair use is a critical cornerstone of copyright, and the ability to cite portions of a book, motion picture, photograph, or even a song (lyrically, or instrumentally) is important.

Next Lessig posits his points from his talk (in his defense he suggests there were four, in the video, he only cites three). He states:
  1. "First, I urged creators of remix to make much more of it...It should be practiced and critiqued in a much wider context." He then goes on to attempt to draw a parallel between re-mixing and kids learning to do creative writing essays by quoting other creative writers. In other words (it seems) - this is all about learning and education. He attempts to suggest that in his video, where he wants this done "not just on sites like Vimeo, in schools, in elementary schools, in universities...", however, there's a big difference between "making much more of it" as he defends himself saying, and saying "We need to spread this kind of creativity and expression in every context we every single place we can", and then later referring to all the money that the hip-hop artists of the 80's and 90's would loose if it was discovered that their remixes contained the creative efforts of others, when he envisioned a statement from the rappers' lawyers to the rappers, who might have said "if they ever discover it they're going to sue your ass, and you're going to loose all the money you're making, so, be as obscure about it as you can." Lessig understands then, as now, that there's money in them thar remixing hills.

  2. "we needed to develop better norms to govern remix creativity." The new norm, according to the videotape of his remarks, should be "Now, I think it's time for us just to stand up and be brave enough to acknowledge what we're doing. And acknowledge and respect the people we're building upon by saying 'it's this person's work I am using, and thank you for creating that work, but I'm not asking permission to remix that work." There are already established norms. For example, in publishing, if I wanted to quote Lessig in my book, I can cite a segment of his book - and while there is no hard and fast rule on the number of words citable without infringement, a paragraph or three, or a few hundred words from a 100,000 word book, would likely be within reasonable bounds. On TV shows, it's often 12 seconds or less of audio/music from a single copyrighted work. The problem with still photography, of course, is that the showing of a still photograph is not using a segment of the copyrighted work (i.e. a few seconds, or a few words) but the entire photograph. The new norm, it seems he's suggesting, should be that I can re-mix as much as I want, without needing permission. Norms, for sure in other arenas, have changed over the years. For example, the norm of acceptable language, sexual situations, and topics on TV has changed over the years. The norms for proper attire in public (street clothes and beach wear) too, has evolved. Yet, the norms of property ownership and the protection thereof should not be changing much.

  3. "the remix creator needs to be recognized as a creator -- meaning, that creator needs to be assured she can keep the rights to her creativity." What he said was "we need to build environments where the remix artists is an artist - meaning, that artist - he or she owns the rights to what he or she creates." In this instance, I will agree with Mr. Lessig, along very narrow lines.

    For example, I for one can appreciate the talent that went into remixing the Sham-Wow guy's re-emergence into tv sales for the slap-chop commercial (here - 11 million view). That re-mix was amazing, yet, yes, an infringement. Would that re-mix artist ever have gotten permission to do that? No, but it went viral, and the slap-chop garnered far more publicity because of it, which is why the slap-chop people didn't send a DMCA take-down notice - in fact, they used it as an actual commercial, as noted here. In fact, the re-mixer, DJ Steve Porter, according to this Reuters article, was all but unknown doing "standard dance remixes to little fanfare for a decade", and then along comes the slap chop video, and he's a star. Next, he re-mixes an NBC News affiliate's interview of Antoine Dodson after an attempted rape of his sister in their home, and now it's the "Bed Intruder Song" with a combined 48 million views - but wait - also according to Reuters, there's "revenue for Antoine Dodson and his family, who will receive 50 percent of the track's sales profits".

    Lessig, however, wants the artist to be able to, for example, simply by re-mixing Star Wars video, be able to claim ownership of the finished product, and the creativity that a Star Wars remixer employs and the benefits derived thereof can't easily be separated from the creativity of the original underlying Star Wars material. Because, it seems, there could be commercial value to that remixed finished product, but the finished product would be worth far less had not just the original costs of creativity been incurred, but also the tens of billions of dollars of marketing that has made Star Wars a household name since the seventies. Lucas is essentially coming at it from the mindset that movie editors are a credited contributor to the movie, but not a stake holder in the final movie, as is the case in Hollywood now, and then, compensated as an editor. Lucas is essentially saying that you can re-edit my movies, but you can't commercialize the finished product no more than someone I hire as an editor on a movie I make can.

    Lessig then employed a charged word "sharecropper" - which draws direct lines of recollection to the South after the Civil War, where former slaves would work the land of property owners as sharecroppers, which became, for some, a new form of slavery. A choice use of words, Mr. Lessig, but the slaves saw few alternatives to earning a living and felt relegated to that station in life, hereas assigning the word "sharecropper" to re-mixers sets them up as an underclass that does not exist - they have countless opportunities. They can sow the land of creative opportunity in the land of public domain, or they can do so in Tornado Alley where the risks are far greater.

  4. Lessig then spoke out of both sides of his mouth when he said "I suggested that remixers signal to others the freedom that they themselves have practiced....It's not my job to tell artists to give away their rights." Which one is it? You just did that, and, in point of fact, you espoused it's widespread happening "in every every single way we can."
Then, you go on and suggest that "None of it, I thought when I finished, anyone should have any reason to disagree with. " Really? How about your organization, Creative Commons, whom you seem to have thrown under the bus? Where are you espousing CC licenses? Where? In fact, you didn't mention CC once! You espoused widespread use without regard for the rights of the original creators, as CC has a mechanism already in place and widely accepted, to do. Is this the ethical thing to do? I suppose as the Director of the Edmond J. Safra Foundation Center for Ethics, you can define what's ethical and what's not - or, well, maybe not? I am supposing that the ethics of banker Safra would not not have approved. In fact, from the Foundations' website we learn that Lily Safra, who chairs the foundation and espouses a commitment to the caring for the less fortunate, would find a need to defend the rights of the starving artist photographers who's work would be a part of a re-mix and could not bring suit in your new norm and new world of ethics. While it may be attractive to serve the underprivileged in third-world countries, closer to home there is a creative community that is starving for the ability to pay rent and put food on the table, and your new world order would harm that very creative community. Realize what I was trying to point out in the previous post - what you espouse for Star Wars re-mixers because it couldn't possibly hurt the pocketbook of George Lucas would most definitely hurt the freelance photographer, independent musician, or documentary videographer who doesn't have Lucas' bank account nor lawyers, but would suffer in your new world of copyright without the means to defend their rights nor earn a living.

Then, when you defend your statement "take it and use it" by saying:
"If you understand 'take it and use it' to mean take whole copies (what others call 'piracy'), rather than what everyone in the audience heard, take in order to remix, then indeed it does sound as if I'm 'advocating widespread infringement.'"
Yes, when you're talking about the use of, say, a photograph in a video, guess what - you're taking the whole copy. That's what happens when you use a still image.

When you state "it would indeed be outrageous that a professor of law would be advocating infringement. "

Yes, it would, and - certainly when it comes to still images - you would be doing so. In fact, many remixers use whole songs as the audio track of their visual remixes. Here's an especially amazing example of that (25 million views) - possibly using military footage (which would be likely be in public domain) but a copyrighted song. So, what say you?

You then write "I believe copyright law should be updated to the 21st century. But in the mean time, I am quite explicit: don't violate other people's copyrights." So, which is it, Lawrence? "in the mean time...don't", or, is it do it now "in every every single way we can." and then, as you state in the video "when we have done it in culture, then the law catches up." You can't have it both ways.

Then, seemingly chagrined to be challenged by the rights-holders when your mindset comes to light for an audience greater than 150 people, you write "I didn't give the talk I gave on national television, or even, on the Internet. I gave it to 150 souls." So, this is like the Dixie Chicks hoping their anti-American tirade they went on on stage in Europe shouldn't reach their American audience? Or, perhaps, then candidate Obama, who, in an intimate donor's dinner in San Francisco, as cited in the Huffington Post here where he thought he didn't have a broader audience, criticized the good people of Pennsylvania when he said "they get bitter, they cling to guns or religion."

You then suggest "We need an anti-moron norm: If something sounds crazy, assume its not." Really? "A woman drives her minivan with her kids strapped into the seats into a lake to drown them, so she can be with her boyfriend." Crazy, but true.

How about: "Mr. Embassy official - my son, he's going on a jihad against America. He's going to strap a bomb in his underwear and try to blow up an airplane on Christmas Day." (here).

If you follow "if something sounds crazy, assume it's not", then what about that guy (here) who built a "community where they could escape American capitalism—and criticism—and practice a more communal way of life?" In the end, his followers, under US government scrutiny relocated to Guyana, and no one could have ever imagined that his direction to drink the Kool-Aid he gave them would kill more than 900 people!

It seems you're offering up your own flavor of "new-norm" of Kool-Aid, and no one should be drinking. Not 150. Not 900. Not anyone. Please, return to your ivory tower, and while you're at it, get Rapunzel a haircut.

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