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http://www.wired.com/wired/archive/12.11/larry.html?tw=wn_tophead_4


How I Learned to Love Larry
She was the champion of the music industry. He was the voice of the people.
It was a deathmatch made in heaven - but they found common ground.
By Hilary RosenPage 1 of 2 next »

Feature:
How I Learned to Love Larry
Plus:
Creative Freedom for All
It was three months after I'd left my job as CEO of the Recording Industry
Association of America, where I'd worked for 17 years. After spending the
summer decompressing in Italy with my family, I found myself last fall in
Los Angeles at USC anticipating a public duel with Lawrence Lessig, the
noted Stanford Law School professor. Lessig and I were longtime rivals in
the ongoing debate over copyright and technology. To present a balanced
program on the issue, USC was paying us a tidy sum to spend two days
disagreeing with one another in front of a lot of people. Despite my
intention to leave my old competitive juices at the bottom of the
Mediterranean, they were flowing again.


On the first night, the university's Bovard Auditorium was packed. Lessig
started with a tortured and sarcastic history of copyright protection. He
railed against such public laws as the Digital Millennium Copyright Act,
which created a US leadership role in protecting digital works against
technologies designed to circumvent copyright protection. (That's not how
Lessig described the DMCA; that's my view, of course. I had been
instrumental in persuading Congress to pass the law in 1998.) When it was my
turn, I pointed out the value of laws that kept pace with technology, rather
than those that were usurped by it. Lessig also complained about the
Copyright Term Extension Act, which adds several years to the terms of
protected works. I countered: Farmers can leave their property to their
children; why shouldn't songwriters be able to leave their songs to their
children?

So the debate was familiar for the first half hour. The old rhythms set in.
Lessig was the fiery populist arguing against the monied interests. I
insisted that it was important to protect creative works and the investments
that made them possible. In a contest of greed versus theft, I suppose I
chose greed as the morally superior position.

When he heaped praise on me and my friend Jack Valenti, then head of the
Motion Picture Association of America, saying how powerful and good we were
at our jobs, so powerful in fact that our respective industries were further
ahead in this policy area than anyone really knew - I perked up. Now he is
making sense, I thought. I knew it was a backhanded compliment. But it
worked for me.

I was warming to Lessig. He wasn't defending theft; in fact, he was against
it. That's why he had helped found the nonprofit Creative Commons. If the
essence of copyright law is to allow creators to have control, he argued,
then there are ways to maintain ownership of copyrighted works and still
make it possible for the average person to license the use of those works.
After all, what's wrong with a licensing system that makes music more
accessible to more people?

Until that moment, I had dismissed Creative Commons as a sleight-of-hand
maneuver, a way to mouth platitudes about the benefits of copyright while in
fact joining ranks with the Everything for Free Foundation. But Lessig was
making a persuasive case. This is going in the wrong direction, I remember
thinking. Had I lost my edge?

Hardly. I'm still cynical about its origins, but I've come to love Creative
Commons. The organization seeks to calm some of music's roiling waters, from
unlawful sampling to file-sharing. As the RIAA continues to use the courts
to discourage the illegal, widespread distribution of songs through
peer-to-peer systems, there has been a chilling effect on other, legitimate
uses. Many musicians and consumers fear reusing pieces of others' songs -
even for noncommercial purposes. Nobody wants to get caught in the
crosshairs of industry lawyers.

Licenses from Creative Commons allow musicians to dictate how their music
will be used - even if they sign with a record label (as long as the CC
terms are part of the contract). Some artists want their music distributed
as widely as possible, with no payment or control requirements; for them, an
unlimited CC license is a way to declare these intentions.

For all its promise, there are challenges CC can't address. The biggest
problem in commercial sampling isn't that artists don't know how to give
away pieces of their work; it's that they and their producers want to get
paid more - a lot more - for smaller bits of their songs. Think George
Clinton, not Gilberto Gil. And unlike a book, where an accessible, online
version often whets a reader's appetite for the paper version, there is
little appetite for another copy of the same song - most music sold online
is in song format. There's no point in assuming you can sell copies of the
same recording you're giving away. Will it whet a listener's appetite for a
concert ticket? Sure, but those who benefit from the sale of concert tickets
rarely invest in the recording.

Meanwhile, as I have long predicted, the music industry is slowly
restructuring itself. Artist contracts are for shorter duration, and every
facet of an artist's output is up for negotiation. Indeed, artists have more
control than ever before, giving rise to, in some cases, business models
with the artists as the central business unit, in effect buying the services
of middlemen to execute promotion, recording, and distribution.
Increasingly, free use and access are employed to stimulate sales. Prince
signed a one-record deal with Sony Music that made sure he could give a copy
of his CD to every fan who bought a concert ticket. Pearl Jam left its
longtime label to release a live album through its fan club. It has also
authorized multiple releases through a bootleg program. The band hires
services from the labels, as needed. Given these changes, the industry ought
to embrace Creative Commons as an agile partner providing tools for new ways
to do business.

But let's not go too far into dreamland. Yes, the current system of
copyright can be antiquated and user unfriendly, and its enforcement can be
discriminatory, but it has created a lot of wealth for individual artists,
not just corporations. More important, it has created a vast body of art for
the public. Let's not dismiss it wholesale.

After the debate that evening, Lessig and I strolled beneath the sycamore
trees on the USC campus. We talked of his dream for Creative Commons and how
artists and fans would benefit if the rules were clearer and if we all could
enjoy more walks in the commons. Our debate on the second night would not
have much disagreeable fervor.

Feature:
How I Learned to Love Larry
Plus:
Creative Freedom for All

Creative Freedom for All



Done right, copyrights can inspire the next digital revolution.

by Lawrence Lessig

"Get a license or do not sample." So held the Sixth Circuit Court of Appeals
in September, in a case that asked whether there is any right of fair use in
musical recordings. There is not, the court ruled. Sampling is piracy, and
the law bans piracy.

You may think that's OK for pop stars. But forget about them for a moment.
Think about your kids. After they get bored downloading all the music they
can find, they're going to discover the power - practically bundled into the
machine if it's a Mac - to remix the culture they've collected. They could
add a bass track to a violin concerto. They could make a home movie and sync
Tom Petty to the images. They could splice together a politician's speeches
to prove she's a waffler. These activities will become second nature to the
iGeneration and could well represent the next great digital revolution -
exploding demand for machines, bandwidth, and software.

Yet these ordinary uses of these extraordinary technologies are all
presumptively illegal today. Digital devices copy to create; to copy
copyrighted content requires permission from its owner. And while the
tradition of fair use with text is fairly mature, that tradition is much
weaker with film, photographs, and sound. In the Sixth Circuit, at least
with sound recordings, there is apparently no tradition at all.

There are a growing number who believe that this regime doesn't make much
sense. If John Coltrane didn't need a lawyer to create his immortal version
of The Sound of Music's "My Favorite Things," why should our kids? And while
many of these people don't necessarily want to change existing law, they do
want a way to make its burdens easier to overcome. They seek, as the Sixth
Circuit proposes, a license to sample.

This is the aim of Creative Commons - to help artists and authors give
others the freedom to build upon their creativity, without calling a lawyer
first. Copyrights protect important values. They are essential to
creativity, even in a digital age. Yet the current version of copyright law
was not written for a world of digital creativity. As applied to these
technologies, it often restricts more than it inspires. Creators who use the
CC licenses are saying: We have built upon the work of others. Let others
build upon ours. Consistent with the law, we can enable this next great
revolution.

Contributing editor Lawrence Lessig (lawrence_lessig AT wiredmag.com) chairs
Creative Commons.