Tag: Lawrence Lessig

The Revolution in the Mirror is Closer than it Appears

The father of modern chemistry Antoine-Laurent Lavoisier was beheaded in 1793 in what is now the Place de la Concorde. A victim of France’s post-revolutionary Reign of Terror, he was specifically marked for execution by one vengeful, lesser scientist named Jean-Paul Marat, whose incorrect theory about combustion had been publicly scorned by Lavoisier at the royal academy.

It’s rare when revolutions do not produce new tyrants, and of course the fact that our own war of independence avoided this fate is a legitimate source of national pride for Americans.  This doesn’t mean we’ve managed to avoid tyranny altogether, only that our despots tend to be CEOs instead of warlords.

In an article for Evonomics, Lawrence Lessig writes, “ … the biggest danger to free markets comes not so much from antimarket advocates (the Communists and worse!) as from strong and successful market players eager to protect themselves from the next round of strong and successful market players.”

Lessig is of course referring to historical precedent in which “old innovation” employs—or even revises—legal mechanisms as a means of protection against “new innovation”.  The familiar narrative is one in which the legacy industry clings to power for as long as it can while new industry inexorably builds the market of tomorrow.  Referring to the protectionists as capitalism’s biggest enemies, Lessig sets the stage as follows:

“…there are only two things we can be certain of when talking of free markets:  first that new innovation will change old; and second that old innovation will try to protect itself against the new.”

In the article, he identifies this protectionism as the kind of crony capitalism in Washington that ought to make allies of “progressives on the Left and free-market advocates on the Right”. And indeed, this type of alliance did manifest in 2012 with the shouting down of the SOPA and PIPA bills, when we saw paradoxical solidarity among members as divergent as the ultra-conservative Heritage Foundation and the anarchic hacktivist group Anonymous. And those bills were certainly labeled “protectionist”, although there were no reasonable grounds for portraying either their intent or their mechanisms in that light.  Still, one cannot deny that one droning note of rhetoric, which continues to muddy the waters, is a broad narrative of Old v New, with New having the advantage of at least appearing to be on the “right side” of history. After all,  history will tell you that New always wins.  That’s why it’s called New.

But the crucial detail Lessig leaves out of his otherwise reasonable premise is that New already won quite some time ago. The yearning revolution he’s talking about is in the rear-view mirror.  The self-proclaimed innovators—the market leaders who are presently writing the future and leading the public debate—already have the lion’s share of wealth at their backs.  Google, Apple, Facebook, UBER, Amazon, et al are not seedling enterprises trying to grow through the concrete and rusted barbed wire of outdated policy; they are the crown jewels of Wall Street and private equity with the capital to do just about anything they want and the PR budgets to tell the market that it’s what we want, too.  Far from banging their heads against a wall of protectionism, New industry is actively and effectively rewriting policy and public opinion; and Lessig is correct that both progressives on the Left and free-market advocates on the Right are cheering them on.  Though I don’t think he’s quite right that they should be.

Neither progressives nor free-market advocates (and I personally consider myself a bit of both) should be bamboozled by the rhetoric of innovation yet to come.  This is not to say that new inventions and new paradigms are not on the horizon—no doubt they are—only to propose that the corporations most likely to be at the forefront of the biggest changes, for better or worse, are already among the most financially and politically powerful entities in the world.  And Lessig is right that the powerful will use protectionist measures to entrench their interests, but the funny thing about our market today—in which a company like UBER goes from start-up to a $60bn market cap in five years—is that Silicon Valley’s leaders and VCs have disrupted protectionism itself and renamed it progress.

Redefining IP as Protectionsim

Not surprisingly, in this broader narrative about protectionism, Lessig invokes criticisms of both patent and copyright law.  With regard to the former, he refers to an increase in patent litigation from 2007 to 2011, with particular focus on the “patent troll”, who might litigate away an otherwise useful innovation.  Although patent trolls are a problem—the worst are sort of the ambulance-chasers of IP law—these actors do not generally represent a protectionist agenda for legacy business.  Ironically enough, though, the Google and Facebook-backed “reform” bill HR-9 is a protectionist proposal inasmuch as its language so broadly defines “patent trolls” that the law could actually harm small, entrepreneurial inventors while entrenching already-big patent owners—like Google and Facebook.

With regard to copyright, Lessig accuses the recording industry of seeking Internet radio rates “designed” to stifle diversity and competition online.  But in describing he innovation being hindered in this case, he first broadly conflates amateurs and enthusiasts with big, corporate players and then blames the RIAA for assuming the online radio market will consolidate.  It’s a bit hard to summarize his point here since he begs some important questions.  You can read the section for yourself, but his larger argument that the recoding industry “wants” a smaller market seems to overlook clear evidence that the networked economy tends to produce monopolies by its own means, and not because of so-called protectionist maneuvers by traditional industries.

Moreover, given that Lessig’s broader thesis is a criticism of money in politics, it seems especially disingenuous to ignore the fact that the VC money behind most of these technology plays is very much betting on market consolidation rather than expansion. In this extensive profile of Marc Andreessen, Tad Friend, writing for The New Yorker, describes the sensibilities of Silicon Valley’s major venture capitalists, who make big bets with the understanding that just one needs to become the “unicorn” while the others can fail entirely.

It is a rationale driven by an instinct for knowing that the 1000x return is somewhere in the mix of proposals that may sound like haphazard lunacy to many of us, but which sound like the future to this niche club of mostly male investors. But the point not to be missed is that this culture produces extraordinarily powerful, competition-resistant companies that go from zero to Forbes cover at historically unprecedented speed. And the political influence they wield scales in tandem, as we see when Google shifts in a matter of a few years from virtually no lobbying to ranking among the top ten in the country.  So, Lessig’s portrayal of private industry leveraging public policy is fair; it’s simply looking in the wrong direction.

Perhaps most importantly, the ideology of the venture capital behind the businesses we tend to aggregate under the generic term innovation is one that has almost no kinship with Lessig’s stated political reform agenda (i.e. getting money out of politics).  Guys like Marc Andreessen and Peter Thiel don’t talk about “fixing” American politics; they talk about rejecting it altogether—taking themselves quite seriously with proposals to establish alternative, technocratic states.

Utopian fantasies like Seasteading may be appealing to any number of libertarians and anarchists out there, but it’s a world view that should not in any way be confused with, for instance, a Bernie Sanders-like proposal to effect reform from within the system. In fact, the two interests are wholly antagonistic since Sanders-style political reform is predicated on forcing American-made wealth to reinvest in America itself—not on billionaires building autonomous societies akin to Ayn Rand’s magic valley in Atlas Shrugged.

Meanwhile, the extent to which Silicon Valley’s brand of libertarian ideology speaks with money in Washington, it is often disguised as anti-protectionist, legislative reform proposals just like HR-9.  Political clout is not exclusively a matter of pay-to-play; it’s also a manifestation of market capitalization that buys even unproven companies a seat at the table simply because they’re too disruptive to ignore. Meanwhile, it’s clear that there is a lot of stable, economic value in “old” industry. And so, this narrative that, for instance, the rights of individuals—be they authors or inventors—are just nuisance barriers to be innovated around, can foster our own economic reign of terror in which lesser innovators are financially incentivized to decapitate greater genius.

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.