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Interview With Lawrence Lessig On Future Rights 148

tres3 writes "In an interview with the O'Reilly Network Mr. Lessig discusses many current issues that may have future legal implications. He starts with MGM's request for Certiorari in the Grokster case. His conclusion is that ReplayTV was forced out of business by a legal challenge, not a legal victory. Lessig continues on to discuss, among other things, The Creative Commons and their new Sampling License and how it may affect the way that some movies and music, that contain samples from other sources, are made in the future. From the article: 'So the same act of creativity in some sense, you know, taking, creating, mixing out of what other people do, is legal in the text world and illegal in the digital media world.'"
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Interview With Lawrence Lessig On Future Rights

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  • by page275 ( 862917 ) on Sunday February 27, 2005 @02:53AM (#11792711)
    Now we all concern about digital world rights ... but we also have to admit the very old fact that "Every lock has a fake key"..
  • by FidelCatsro ( 861135 ) <[moc.liamg] [ta] [orstacledif]> on Sunday February 27, 2005 @03:03AM (#11792745) Journal
    "Lessig: This is not a constitutional question in the Grokster case at all. The Grokster case is just a question of whether the court should apply a secondary liability on the manufacturer because the product was used illegally by a customer."

    Out of intrest , are the makers of guns liable.
    if not then why not and then why should p2p companys, With a gun you can break far greater laws than with emule .
  • Unconstiutional... (Score:5, Insightful)

    by tidewaterblues ( 784797 ) on Sunday February 27, 2005 @03:08AM (#11792769)
    For quite some time now I have been of the opinion that the prohibition of the creation if derivative works that copyright imposes is outside of the understanding of the original concept, and in addition to being insainly dangerious to society, is also unconstituional. ... Actually, I should qualify what I just said, I am not just of the opinion that the prohibition is unconstitutional, I believe it is, in fact, a direct violation of the Natural Law. It is, in fact, morally evil on some level to prevent other's from re-interpreting pre-existing creative-thoughts into their own, substantially new ideas. I may be completely alone in my views, and I appreciate that they do not mess with the common-sense morality of our culture (cf. authors and Movie rights, for example). But I do think it is a place where discussion can begin.
  • by Tripax ( 162140 ) on Sunday February 27, 2005 @03:10AM (#11792772)
    Whenever I see Lessig in the headlines, I always think of having to read "The Three Ring Parable" [] in German class. Luckily, Lessig talks a lot about making a collage of different ideas in terms of technology, While Lessing talked about making a collage of different ideas in terms of philosophy (or more precisely, religion).

    In any case, I would like to draw out the comparison a bit further. Nathan the Wise [] was Lessing's play in favor of religious toleration, expanding what was allowable thought at the time. Lessing may have been wrong about a lot, but pushing that envelope was a great thing. Lessig too risks his reputation by pushing the envelope. In the future, we will probably see intellectual property law very differently, thanks to the discussions going on now.

    (from the interview)
    . . . imagine a group of butchers who've spent their lives dealing with cut-up meat. That's the way they understand how to make money, to cut up meat and sell it in the most efficient way. And then they come across a racehorse and, of course, their first intuition is, here's a valuable resource--we'll cut it up and sell it in bits. But all of us recognize that the racehorse is more valuable without being ground into this system of butchery if it gets to be used in this different way.

    And that's the way I think we should think about our culture. Their conception of how to make money off the culture is to cut it up and sell it like pieces of dead meat. And that's of course valuable for butchers, but it's not clear it's valuable for society. If all content is locked in these little separate containers and you have to seek permission to do anything with it, then a huge potential, both economic and social, will have been lost.
  • by earthbound kid ( 859282 ) on Sunday February 27, 2005 @03:12AM (#11792780) Homepage's a shame it's necessary. Why is it that if I'm writing my blog, I can take any paragraph of text in the world, quote it, then tear it a part, but if I'm making a song and I sample 1 second's worth of The Beatles, my ass will be in court before the third chord progression?

    It's definitely a step in the right direction that Lessig has codified the Creative Commons license, allowing us to make things like Wikipedia [] and one or two music sites, but really the CCL doesn't give us any rights that we shouldn't already have under Fair Use anyway. I mean, Walt Disney has been dead for 30 years. Why the hell can't I draw Mickey Mouse smoking a joint if I want to? Why is Magnavox [] still able to get license fees from people making video game consoles? Why does Nintendo still own the D-pad and A+B buttons? And what's up with Apple paying Amazon for one click shopping in iTunes? It's all just so ridiculous.

    I recognize the need for some limited monopoly to spur innovation, but it's clear that at this point IP has spun out of control. Thank goodness for people like Lessig, Groklaw, and the EFF!
  • Only in America (Score:4, Insightful)

    by Kip Winger ( 547075 ) on Sunday February 27, 2005 @03:14AM (#11792787) Homepage
    The reason the American software industry is going to lose within the next 20 years has to do with the fact that lawyers, due to the American "justice" system, are bringing whole new levels of bureaucracy and stifling to the information and software industry as a whole by trying to apply outdated theories of legality to a dynamic industry. Companies shouldn't be forced out of business simply because of fears of legal action -- it's outright murder of creativity.

    Eventually, things will become so draconian that companies and independant (often open source) developers are afraid to develop software in America, from fears of breaking things like the DMCA or being charged with "Software Patent Infringency" that they'll have to create new silicon valleys elsewhere in places that don't care.

    Europe would be a nice setting, depending on how that turns out, but who knows? Bright young programmers could be fleeing persecution for their works in the USA to set up shop in Bangalore, where they'd probably be able to live like kings. Either way, the way things are going, only monolithic corporations will still be putting out software.

    If the US government decides to ban the sale of what everyone else in the world is using, then they'll only fall behind in technology overall...

  • by mankey wanker ( 673345 ) on Sunday February 27, 2005 @03:14AM (#11792789)
    Oh, you're not paying attention...

    The violation of commercial property rights is the worst possible crime imaginable. Taking a human life merely decreases the surplus population.

    Corporations are eternal. People come and go.
  • by Alsee ( 515537 ) on Sunday February 27, 2005 @03:33AM (#11792833) Homepage
    He who has the gold, makes the rules.
    learn to live with it. There's no alternative.

    Once someone gets to start making the rules for their own benefit they tend to turn into a crack addict making more and more rules for their own benefit. And eventually the peasants raise up their pitchforks and torches, take all that gold away, and then take away their heads too.

  • by argoff ( 142580 ) on Sunday February 27, 2005 @03:40AM (#11792854)
    A Bitter Protest Against Copyrights

    If they said there was no incentive to do good things unless the government could choose your religion ... or they said there is no incentive to grow food, unless farmers could rip up your garden ... most people would see these as the awful values that they are. But if they say that there is no incentive to make beneficial or creative works without the power to restrict what people copy (copyrights), then all too many people just take it on faith. They don't even question it, as if incentive makes rights, as if society would fall apart without them. But just as much of the Renaissance happened without copyrights so should the information age.

    Calling copyrights "intellectual property" is intellectually dishonest. The moral and historical foundation of property derives from mutual respect and the fact that not everybody can posses something at the same time. The foundation of copyrights derives from kings who granted publishers monopolies in return for not publishing bad things about the monarchy. Copyrights are about control, censorship, and not a free market property. In fact, they cheapen property rights by treating things that have natural limits in supply such as food, shelter, and medicine like information that does not.

    Worse, is how people who copy are slandered with names such as "thief" and "pirate", as if copying was akin to boarding a ship and murdering people. They are even accused of stealing food out of the mouths of starving artists. Yet these verbal assaults hide a cold and calculated lie, the one that says "copyrights benefit creative people". The truth is that for every artist or writer that has made it "big", there are unmentioned thousands who copyrights haven't helped a bit, hindered, or even destroyed. Some are even bared or sued from sharing their own creations in public, others die with the world never truly knowing their artistic genius as the mass media drowns them out. Most creators are far better off sharing and distributing their creations freely to make a reputation for themselves. Copyrights not only cause them to be drowned out in a sea of hype, but do so deceptively.

    However, these aren't the only problems related to copyrights. They are just a sample of many that are constantly blown off, glossed over, or ignored. Like the failures of Hollywood culture, the failures of big media to offer quality material, the failures of the market to offer competitively priced books for college students while tabloids are dirt cheap, and massive anti-trust behavior in the software industry to name a few. Their hypocritical pleas like, "how will we make money without copyrights?" is like a mobster asking "how will I make money with out victims extort?"

    The burdens of imposing copyrights might have been bearable a quarter century ago when the biggest issue was copy machines. But today in the information age there is no technical distinction between copyright content and free speech content. Information is so easy to copy and manipulate, there can be no "middle ground".Our society must make a choice: Our communications will either half to be monitored or free, our privacy will either half to intruded or protected. Our speech, writing, and free expression will either half to be abridged or unabridged. Any institution that has the power to control one, must have the power to control all. Copyrights are like a vine that will never stop growing to choke off our freedoms until we cut it of at the root!

    Consider parallels to other periods of transition like the industrial revolution:

    History teaches that during the 1800's there were many people who believed that the entire meaning and purpose of the industrial revolution was to leverage inventions like the cotton gin to expand their plantations for unlimited growth and profit. Ironically just the opposite was true,the industrial revolution demanded a mobile and skilled workforce.

    First, they responded by making

  • by Alwin Henseler ( 640539 ) on Sunday February 27, 2005 @04:16AM (#11792933)
    With a gun you can break far greater laws than with emule.

    Yes, one would expect a view like that from reasonable people. But you know, in the US, if you walk around pointing guns at people: business as usual. But if somebody drops his pants in the middle of the street, or worse, shares a movie over P2P, then everybody goes crazy.

    Weird folks, those Americans.

  • by Anonymous Coward on Sunday February 27, 2005 @04:31AM (#11792969)
    I can't decide where we need Lawrence Lessig more... in the White House or on the Supreme Court bench...
  • by Anonymous Coward on Sunday February 27, 2005 @05:04AM (#11793027)

    "Eventually, things will become so draconian that companies and independant (often open source) developers are afraid to develop software in America, from fears of breaking things like the DMCA or being charged with "Software Patent Infringency" that they'll have to create new silicon valleys elsewhere in places that don't care."

    Excuse me? ... will become?
    My dear fellow, with all due respect, you are simply wrong on this matter. The future is here. I am an Open Source developer. And I have a great idea that I'd like to take to market.

    I already AM afraid of bringing this to market, due to bogus patent lawsuits, and the financial losses which will result to me personally.

    So what can I do? The ONLY way this can happen now in the U.S. is by Open Source. And I need to make certain that I transfer the copyright over to the FSF, as is recommended with the GPL.

    Furthermore, I also need to start up a company, incorporate it, and follow all the onerous rules about State filings, stock issuance, Tax ID number, payroll, and whatnot, just to insulate my personal finances. Yes, I could avoid this step, but I have enough personal assets that I really need to do this.

    All for a relatively simple and useful solution in a particular niche, which has received a lot of positive interest and some press.

    If you want a first-hand look at the negative effect of Software Patents and bogus lawsuits are inpacting creativity on the cutting edge, look no further.

    The other sadly amusing side effect is that there is absolutely no way that I could take this via a proprietary route. Back in the 80's and 90's, I could build up a company myself without being forced to go to a VC. Now I can't. I'm positive some two-bit thief of a lawyer would come along with a bogus patent and want some money. I can't afford this personally. And so, the closed-source route is no longer viable for innovation, except on the large-scale level.

    What further proof does anyone want at how innovation is being stifled?

    And yes, if the EU actually does reject Software Patents, I'm going over there as soon as I can. Not to go the closed source route; but just for the piece of mind.

    Yes, I'm worried. And if you aren't (and are in the U.S.), you're either not doing innovative work, or are sticking your head in the sand.

  • by Anonymous Coward on Sunday February 27, 2005 @05:17AM (#11793052)
    That explain why it is legal to kill people who are not consumers (like by humanitarian bombing)
  • Music Copyright... (Score:4, Insightful)

    by TruckerTom ( 862655 ) on Sunday February 27, 2005 @06:59AM (#11793245)
    My feeling is if you don't like the way things are copyrited and/or the way a particular industry works, stop using their products. The entertainment industry acts like a drug pusher protecting his turf, or a Mafia guy making businesses in a corrupted neghborhood pay "protection" fees. Take their power away by stopping drug use and/or moving to an uncorrupted neighborhood. The sad fact is that the entertainment industry is making billions of dollars off of mediocre product because they have millions of addicts. It's like fast food -- the fast food keeps getting worse as more and more people eat it.
  • by danila ( 69889 ) on Sunday February 27, 2005 @07:27AM (#11793290) Homepage
    All this is an inevitable outcome of capitalism. If it is already ridiculous to you, a citizen of the United States, imagine how insane and asinine it looks to people outside your country.

    In my country all works created before 1973 are in public domain. In my country filmmakers do not get permission to use a trademark in the movie. In my country people sharing files are not sued and only large scale commercial pirates need to worry (somewhat) about law enforcement. In my country there exists for 11 years a ligitimate online library with 5Gb of free books in unencumbered formats, including works of most modern authors.

    I am not saying that my country is perfect, I am just saying that for the majority of the people US-like copyright is abhorent and they have no respect to it.

    As for your sad complaint about the necessity of CCL, I fully agree. I curse the day I decided to become a Wikipedia (which, BTW, uses GNU FDL, not CCL) editor, because now I became conscious of what I copy and what is the legal status of it. Not that it prevents me from pirating music/movies/books/software, but I'd rather not think about it at all.
  • However (Score:3, Insightful)

    by Anonymous Coward on Sunday February 27, 2005 @07:37AM (#11793304)
    the only marker the RIAA have for how much piracy is hurting them is the fall in sales or profit. A boycott will merely make you a probable pirate.

    I keep getting hassled by the TV licensing authority for not having a license for my TV. However, their only proof of my having a TV is that other people do.
  • by 3seas ( 184403 ) on Sunday February 27, 2005 @08:36AM (#11793439) Homepage Journal
    ...intellectual property granting, licensings is a legal oriented document of agreement. Though there are things in any legal document that might be non-binding due to priority of other legal issues, the point is, is that it is a document of agreement by those who use it.

    No document should be able to allow the signing away of natural human rights or such rights that fit needed freedoms in any given economic environment, such as a fair competition economic environment (i.e. probably quite a few of MS's created agreements with OEMs, etc.. contridicting fair competition as was presented in the DOJ vs. MS case..)

    But here is the key point:

    "..if we didn't build upon what those before us have done, we then would not advance at all, but rather be like any other mammal incapable of anything more than, at best, first level abstraction. But we are more, and as such have the natural human right and duty to advance in such a manner."

    from abstraction physics" []
  • by 3seas ( 184403 ) on Sunday February 27, 2005 @09:40AM (#11793575) Homepage Journal
    Anonymous Coward,

    you have a choice, but you may not like it, because it requires full out honesty about software, and that is something you may not be willing to do.

    To prove that software is not patentable means that it must be made easy enough to create that its common for anyone to do so, just as it is common for people to use a calculator, probably instead of doing the math manually.

    Can software be automated to such a point?

    Absolutely, in fact that the is the ultimate goal of the act of programming:

    Programming is the act of automating complexity, typically made up of a collection of previously automated complexities (machine language is perhaps the baseline of this process) but programming is done so to make the complexity easy for the user to use and reuse, thru a simple to use interface. This is a recursive act such that complexities you create simplified interfaces to could be used in teh creation of even more automation...

    Ultimately reaching the goal of programming is a working yourself out of a job, in a way. But you have to ask yourself, do you really want to have been using the roman numeral system instead of teh simpler and more powerful hindu-arabic decimal system?

    Point being, your vested interest in your career of being a programmer is perhaps keeping you from the honesty of the purpose and goal of programming enough to lie to the general public as you and many others in your situation, proprietary and open source have both lied so to protect your trade, as the roman numeral accountants argued "how can nothing have value -- regarding the zero place holder" so to protect their social standing and industry.

    Its easy to beat the software patent arguement, if you are honest about it.

    It is no supprise that you post as Anonymous Coward.

    Note: without the decimal system and its zero place holder, you wouldn't have computers to program.... maybe you should think about what industry(s) you are preventing from evolving, not to mention the benefits you might receive of such industries.
  • by Morosoph ( 693565 ) on Sunday February 27, 2005 @09:51AM (#11793606) Homepage Journal
    You're using different meanings of the word "captialism".

    We've had approximations of "free markets" for millenia, but "capitalism" properly refers to capital, ie. property. Simply put, IP is ambiguous, even slightly antithetical to the concept of a free market (emphasis: freedom), whilst it is entirely in the spirit of capitalism (the prevalence of property and property rights).

  • by Anonymous Coward on Sunday February 27, 2005 @09:52AM (#11793614)
    No really, IP was always supposed to be a limited concession to encourage publishing of art and inventions.
    Things that would be in the public domain have had the length of their copyright extended, rewriting the 'contract' after the agreed exclusivity benefits have been enjoyed.
    Patents are in a similar position not because of extension but the fact that with more rapid progress after that after the 20 years of exclusiviry they can be irrelevant.
    There are a whole raft of inventions that cannot be made because it uneconomic to liscense all the technologies involved and art that cannot be made because either rights will not be granted or are too expensive. Documentaries and Modern music most obviously suffer a lot from this because they directly sample things. Clasical composers though have run afoul of such things as they sample melodies to compose their works and Bebop and Jazz with its standards probably would be unable to evolve in todays aggressive climate.
    Even worse than cripling the evolution of human culture Intellectual Property inhibits research into medicines that could save millions due to having to liscense many different patented genes - to do basic research into breast and other cancers. These Genes were not 'invented' just sequenced - imagine Newton patenting Gravity and you see how wrong this is. It is not a cost of recouping research costs, it is more akin to 'cyber-squatting' the human genome.
    Intellectual Property impedes progress, it inhibits the economy, it is not the free market it is the creation of monopolies with incredible penalties associated with those guilty of copyright infringement.
    Monopolies are a bad thing for consumers, Government enforced Monopolies are worse.
    P.S. I stole all these ideas from others, even the ones I believed were original are heavily derived from preexisting thought.
    But especial theft thanks goes to Freedom of Expression be Kembrew McCloud [] which is very readable has well documented examples of all the above and is available for money or for free.
  • by cbr2702 ( 750255 ) on Sunday February 27, 2005 @10:17AM (#11793685) Homepage
    It is, in fact, morally evil on some level to prevent other's from re-interpreting pre-existing creative-thoughts into their own, substantially new ideas.

    But re-interpreting pre-existing creative-thoughts into one's own is allowed, as long as the result is substantially different from each component. And as long as it is just the thoughts one re-interprets. Once I start taking sound or video samples, the situation is pretty different.

  • by Anonymous Coward on Sunday February 27, 2005 @12:08PM (#11794127)
    Well that's the way the law works. It was legal to smoke opium in America once upon a time too.

    But there are some inate laws of the jungle that people are compelled to follow. An inbred concept of where fairness ends and unfairness begins. Even The Constitution recognizes that all ideas inherently, and ultimately belong to a society as a whole. For the sole purpose of fostering their accelerated creation, the government is empowered to step in, and fight the inexorable tide of the marketplace and grant limited monopolies for all the new ideas. Good or bad. But we've slid a little more towards oligarchy/plutocracy than republic of late. So those once limited monopolies aren't. Fundementally, any disclosed intellectual property is an artificial entitlement. And where that prevents other people from innovating, is an aberrant and unintended pitfall of a system turned against itself.

The moon is a planet just like the Earth, only it is even deader.