Lessig Mixes it Up

Attorney and legal scholar Lawrence Lessig considers the current copyright system to be generally antagonistic to contemporary culture.  In fact, any number of common assertions about copyright’s supposed obsolescence in the digital age are very likely derivative of something written or said by Lessig, who has devoted a fair amount of energy promoting the value of the remix.  In at least two video versions of this talk, he prefaces the subject by quoting John Philip Sousa, who in 1906 decried the new “talking machines” thus:

“When I was a boy … in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today, you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.”

You might expect this quote to be used as a segue to criticism of anachronistic fears of new technology — like Jack Valenti’s infamous exaggeration about the VCR as a “Boston Strangler” — and in fact this Sousa quote has been referenced by scholars and technology advocates in this context.  But in this case, Lessig cites the composer for a very different purpose, which is to tee up his audience for a chat about rediscovering what he calls “read/write culture.”  In essence, Lessig claims a kinship with Sousa, pining for the days when people sang (i.e. shared) songs with one another through the nexus of their front porches.  Thus grounding viewers in this nostalgic idyll, Lessig then proposes the reasonable enough notion that YouTube (or any social media) is the new front porch of our digital times. This, he tells us, is how “the kids” are sharing the songs of the day — through mashups, through bedroom performances, through remix in many forms — and it is, therefore, wrong to criminalize “the kids” for engaging in a new variation of a bygone pastime.  And by “criminalize” of course he means enforcing copyrights through takedowns, C&D letters, or even lawsuits.

Now, Mr. Lessig is a controversial figure among those who care about artists’ rights and digital culture, but he is also a highly qualified legal scholar, and I would not presume to question his knowledge of the law itself.  I leave such criticism (and there is plenty) to Mr. Lessig’s peers.  But I do know a sales pitch when I hear one, and I certainly have a bone or two to pick with what Mr. Lessig appears to be selling.

Right off the bat, he takes Sousa’s concern for the American vocal cord entirely out of context, omitting the fact that these words were uttered as a preamble to testimony before Congress in favor of stronger copyright laws.  Specifically, Sousa hoped copyright would expand to protect sound recordings, which didn’t happen for another seventy years.  Regardless, even cherry picking the sentiment, I’ll buy Lessig’s comparison between the porch of yesteryear and the virtual porch of today, but I have to stop myself from being sucked too deeply into the metaphor when I realize he’s constructing a straw man.  Or in this case, straw kids.

As Lessig is free to generalize in his talk — to gloss over the case-by-case realities of various infringements, fair uses, takedowns, or suits — I’ll claim the same privilege and generalize that very few rights holders are in any way interested in “criminalizing” the kind of remixing that could arguably compare to the social celebration evoked in Sousa’s yearning plea. In fact, here’s a video of some ladies singing just one of the songs of the day (the mid 80s anyway) on both a virtual and literal front stoop just as JP Sousa would supposedly have it.

This ukelele trio that calls itself No Skanks On Sunday offers a charming rendition of “Take the Skinheads Bowling,” written and originally performed by David Lowery’s band Camper Van Beethoven.  And you know who’s just fine with this video remaining on YouTube?  David Lowery and Camper Van Beethoven.  That’s the same David Lowery who, through guest appearances and his blog The Trichordist, has become one of the most outspoken opponents of piracy and other forms of mass digital infringement. But when I asked him about this video, his response was, “Yeah, we don’t care about that stuff.”  And I’ll bet my paycheck against Lessig’s that the majority of rights holders feel the same way about this kind of use.  So, if we’re going to generalize, I think it’s accurate to say that remix culture, for better or worse, is doing just fine and that the number of wrongful, mean-spirited, or aggressive takedowns represent the exception rather than the rule.  So, while I don’t know the law well enough to tangle with Lawrence Lessig, I see little evidence of rampant “criminalization of the kids,” which makes me wonder if Lessig is really concerned with defending culture, or is he concerned with selling books and making a career out of addressing a problem that isn’t a real problem?

Meanwhile, what is certainly offensive to artists and bad for culture at the same time is what happens when one types “Take the Skinheads Bowling,” or just about any other song title, into a search engine. We’re supposed to be 20 years into “the information age,” but good information is actually becoming harder to find if search is the tool being used.  The top results will be a handful of YouTube videos of CVB playing their song, none of which are by permission; then the obligatory Wikipedia entry, which is an okay first source but requires fact-checking; then there’s a smattering of unlicensed lyric sites selling ads and only sometimes crediting the songwriters; and then we get into torrents and other means of downloading unlicensed versions of the song itself.  Nearly all of this activity directs money into Google’s coffers, and neither the band nor the public is particularly well served if the initial search began with “What’s that song? Whose is it? I want to know more?” For all the noise about “connecting with fans,” search is actually a wonderful way to disconnect works from their authors and to hijack potential fans away from patronizing the artists themselves. I think we all have a bit of ADD on the web; we set out looking for something and can be easily distracted by the offerings in the top results.  Think Google doesn’t know this?

I remain confused as to why a band’s official website is not among the top results when one types in famous lyrics or song tiles; and I know what SEO is, but if cultural diffusion is the goal, shouldn’t the digital-age version of the album cover be among the first  sources discovered by someone searching a song?  CVB’s site offers lyrics, notes, guitar tabs (all free); and the user just might, I don’t know, learn something about the band and discover more tunes he or she likes.  That’s connecting with fans; but the company that owns the only search engine to speak of and the only ad server to speak of doesn’t really support traffic directed in this way.

So, as a legal layman but active observer of these things, it seems to me Mr. Lessig’s presentation, though charming, contains at least two fallacious premises.  The first is that the positive aspects of remix culture are actually threatened by the copyright system; and the second is that remix culture is universally positive.  I don’t know of any cases in which rights holders are stopping “the kids” from singing the songs of the day on YouTube.  But there are plenty of cases in which adults are profiting from remixing culture in ways that benefit neither fans nor creators. While it’s almost rote these days to call everyone a shill, I don’t think this is very helpful. I prefer to assume intelligent people mean what they say and believe in their positions, and Lawrence Lessig is certainly an intelligent man.  Of course, that might be why his ideas are ultimately so dangerous.

© 2013 – 2015, David Newhoff. All rights reserved.

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  • Copyright laws were created for the very purpose of
    protecting artists and their work to ensure that as a culture this
    country will continue to have a rich heritage of art. How we treat
    our artists is a reflection of our society and our values. If we do
    not take the well being of our artistic community into account, it
    will be a painful admission that our greatness as a society is
    behind us. The inherent cynicism of the value of art by the
    technology community bodes poorly for our future.

  • Lessig = The Timothy Leary of our times

    • Timothy Leary? Is the reference that the tech community has indeed drunk the cool aid for their value to society?

      • comment was more about a middle-aged professor who became
        incredibly “hot” with the youth of the time and who played to that
        youth, but who, with the passage of time, was diminished in
        significance as the culture moved on.

  • Ineighbors, thanks for the clarification. BTW Right

  • I find there are two major errors in his whole “criminalising remix culture” line Lessig keeps on spouting.

    The first is the word “criminalise” itself, which means essentially charges of criminal copyright infringement. That is clearly laughable, given how reluctant everyone is to bring criminal charges against even the most egregious infringers – I mean pirate services here. Overwhelmingly, if someone gets their remix taken down it is a civil action. I know of no single criminal case being brought against an individual for infringing copyrights in the way individuals are like to do these days (meaning, in broad terms, not-for-profit infringement).

    Second, Lessig is conveniently glossing over the difference between singing on your front porch and singing on YouTube: publication. A lot of uses that are fair (or non-infringing) in private, cease to be so when publication is involved. In that sense, Lessig is actually launching a major broadside against the very essence of copyright, because if three ladies sitting on their front porch are to be absolved from responsibility for securing a license to a song they choose to record and publish worldwide (via YouTube), there’s no very good reason why a major label (or an advertising business, for example) should be required to do so.

    Whilst I can see why David would be less than bothered about such videos, I have to say that I oppose the idea that people should be permitted to shlep just about anything on the web as a matter of principle. There are ways to handle these things, the simplest is to just write in and ask. Moreover, it is perfectly feasible for artists to issue their own “fan licenses” (provided they still control their copyrights) which stipulate the circumstances under which a song (or other copyrighted work) may be used. What is completely unacceptable, however, is the presumption that you can take just about anything, play around with it and publish the results. It shows a huge lack of respect and you deserve to get your video taken down just for that.

    • I recall a video from a few years back by Viacom’s Michael Fricklas where he said that the issue as far as they are concerned isn’t the mashups. Those don’t present a problem. Its the straight copy that is the issue. And indeed 99% of youtube isn’t mashups where someone has added in their own content, it straight copies, or at best a slideshow consisting of some ripped music and a bunch of ripped photos from some place else.

  • On SEO, the big company still has a way to go in terms of
    finding authentic voices on the internet. It is not them being
    disingenuous, it is just them not getting it right. Yet. They have
    a whole lot of other things to answer for, but perhaps this is a
    good point to lobby the big company over. To rank the source first.
    Boy oh boy the ironies, and really, do you think Brin and Page
    actually care.

  • Haven’t read through the comments, so don’t know if this point was already made:

    Lessig’s “front porch” analogy is false. The online equivalent to singing on your front porch would be singing on your own, personal, non-commercial website. And, I’m not aware of ANY copyright litigation directed at music played on personal, non-commercial websites.

    Singing on YouTube is equivalent to singing down at the local bar on amateur night. And just as the local bar must secure licenses from the music’s copyright owners in order to run a business that profits, at least in part, from musical performances, YouTube – and any other business seeking to profit through the exploitation of copyright owners’ exclusive rights – must also secure licenses from affected rightsholders.

  • At one time people bought sheet music and learned songs and lyrics, then went out and shared this material with their neighbors and sang together on the front porch.
    Singing on your front porch is singing on your front porch.
    Singing online with ads surrounding you is not singing on your front porch. Anyone who thinks it is is just silly or never had a front porch.
    Kids who shoot videos of themselves singing their favorite copyright songs are not criminals. People who make tons of money from kids singing those songs just may be.
    I’m convinced Lessig is on a personal vendetta to end the musical arts as a business. I’m just guessing, but I’ll bet $$ someone lost a lover to a guitarist.

  • I recall that in what I consider the heyday of modern musical creativity…the 1950s-1970s, the “front porch” was populated by friends who brought with them the recordings they purchased at the record store and shared on the record player. And if you had a garage band, you likely re-performed your favorites & dreamed of getting a recording contract. While the major labels controlled access to their recording studios – the only quality production/reproduction facilities available – this somehow didn’t constrain the creativity; rather it ensured quality and creativity soared, going from swing bands to prog rock and beyond in a few scant decades. If you stunk, you probably didn’t get into the studio, plus cassette recorders made rather poor quality reproductions. “Piracy” was synonymous with “bad quality”.

    I don’t believe the advent of digital recording/reproduction/sharing has resulted in more creativity. Rather, it has provided access to quality recording and reproduction to anybody and their uncle/aunt.

    What has been lost is control…the very root of what Mr. Lessig would seem to be railing against (if you think about it) and that’s anarchy. But in anarchy, only the ruthless and powerful succeed at the expense of the lesser of us. And I think that is what Mr. Lessig would like us to ignore.

  • Excellent comments and love the article. I thought Lessig
    abandoned this conversation for other pursuits… after one of his
    Harvard (?) student followers killed himself, after being charged
    with engaging in illegal activities on a school campus…. He
    seemed to be under the impression that it was OK to break into the
    school and engage in hacking (as it was really a “victimless
    crime…”) so it was pretty tragic. (Don’t recall all the details –
    think story appeared on Huffington Post.) Its frightening that
    Lessig has “educated” generations of “Google Scholars” (at Stanford
    and Harvard) in a belief system that is totally at odds with the
    rights of creative people… Same with EFF… and “hackers rights”
    – which Lessig has also been part of. I am glad more people are
    being vocal about this. Go to Music Tech Policy site to read about
    Google’s arrogance and legal antics in dealing with US State
    Attorney Generals. Google placed ads on illegal counterfeit drug
    destinations (and scored 500 million in Canada alone I think.)
    Google, EFF, Pandora, etc. have no respect for the creative
    community or our legal system – with their only goal to circumvent
    our rights or change the laws through lobbying and very effective
    misinformation campaigns. Information is not copyrightable – and
    they know it. But their campaigns and themes like, “keeping
    information free” makes it sound like copyright is impairing 1st
    Amendment Freedom of Speech… Fair Use exception (on top) provides
    a great deal of leeway and does not need to be expanded. I think
    these Google scholars have been duped – as have artists and
    consumers alike. That is the purpose of EFF who gets funding from
    Google and protects hacker’s rights. Someone needs to write a
    complete expose, but by the time they do, Google may have rewritten
    the US Copyright Act. It has already been recommended that
    statutory damages be decreased and that if a copyright owner does
    not re-register within a short period of time, then his copyright
    falls into the public domain. Pretty oppressive….Go to US
    Copyright website and see the recommendations by our own Register
    of Copyrights, Maria Pallante with regard to proposed revisions.
    Time to take some action…write letters to Congress. And don’t
    forget to join NARAS in fight for performance rights for sound
    recordings…and credits for creative people in metadata.

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