Lessig: Sousa, Trespass, Cartels and free culture

Rives shares news with us about the Giacometti Code, the secret conspiracy that explains why “4am” gets such a bad rap. He traces it to Giacometti’s “The Palace at Four in the Morning”, the “first surrealist sculpture”. Somehow he links Judy Dench, Bob Dylan, the Simpson, the Nobel Prize, and finally puts the conspiracy at the feet of Bill Clinton. I can’t pretend I understood it, but it was very, very funny.

Larry Lessig has the misfortune of following such a funny tale, but is more than up to the task, as anyone who’s watched him speak knows well. His focus is on user-generated content, and he starts by citing John Philip Sousa’s fears of the rise of the phonograph. In 1906, Sousa went to the US Capitol to warn legislators that “these talking machines” were going to ruin the artistic development of music because children would no longer “sing the songs of the times and the old songs” in front of their houses. He warned, “we will not have a vocal chord left” once the talking machines take over the making of music.

It looks like Sousa is right – the last century has seen the professionalization, concentration and constraint on the creativity on millions of people.

Lessig asks us to consider how trespass had to be redefined in the age of the airplane. Do airplanes need to consider the rights of the landowners that they fly over? Two chicken farmers took a complaint to the Supreme Court, arguing that their chickens were following planes across the sky and bumping into the walls of their barns – clearly the airplanes were trespassers. But the courts realized they had to abandon the idea of property lines extending infinitely into the sky, or air travel will involve impossible legal complications.

He tells us the story of the birth of BMI. ASCAP, the reigning copyright society, raised prices on broadcasters 400% between 1931 and 1939. Broadcasters began BMI as a more “democratic” alternative, and began protecting music of African Americans as well as white musicians. They also produced a large set of public domain music, given away for free to subscribers. ASCAP doubled their costs but predicted that no one would switch to BMI’s “inferior” product – they were wrong. BMI’s competition broke the cartel.

“The most significant thing to recognize about the internet is the ability it has to revive read/write culture.” The Internet will reinvigorate our vocal chords, rebuild amateur culture, where we build content for the love, not for the money. Our children are “remixing the songs of the day and the old songs”. We see three clips quite familiar to anyone who’s seen Lessig speak – a set of Anime clips that lipsync a classic Muppets tune, the Tony Blair/George Bush duet, and the “Jesus Christ Musical” set to Donna Summer… This isn’t piracy, he tells us – it’s something different, the literacy of this generation.

“The law has not greeted the Sousa revival with much common sense.” There’s a presumption that these activites are illegal. But since every use in the digital world is a copy, we’re all trespassers in the same way that airplanes are trespassers.

While there’s no revolt, there is growing extremism from both sides of the debate. Copyright holders are moving towards systems that auto-takedown any content that has incorporates copyrighted content, whether or not there’s fair use involved. On the other side, we see growing copyright abolitionism, because extremism on one side begets extremism on the other.

In searching for balance, “As any good liberal, I tried to fight by looking to the government. That was a total mistake.” The courts, he tells us, are too passive, and legislators too corrupted by the economy of influence. So we need to find a private market solution.

We need to let artists and creators embrace the idea that their work can be made available more freely (i.e., Creative Commons) and we need businesses to embrace this opportunity – like flickr and videohosting sites which allow the growth of an “ecology of freer content”.

No Lessig talk is complete without dire warnings. Today’s is a warning that we’re teaching our children to be law-breakers. The activity they need to engage in – remixing of culture – turns them into criminals. “They’re living life in a way that’s constantly agains the law.” This is corrosive process, and one we should be able to do better than in a democracy.