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Lessig is wrong (mostly)

Via Doc Searles comes this quote from Lawrence Lessig:

…our attention is not focused on these creators. It is focused
instead upon "the pirates." We wage war against these "pirates"; we
deploy extraordinary social and legal resources in the absolutely
failed effort to get them to stop "sharing."

This war must end. It is time we recognize that we can’t kill this
creativity. We can only criminalize it. We can’t stop our kids from
using these tools to create, or make them passive. We can only drive it
underground, or make them "pirates." And the question we as a society
must focus on is whether this is any good. Our kids live in an age of
prohibition, where more and more of what seems to them to be ordinary
behavior is against the law. They recognize it as against the law. They
see themselves as "criminals." They begin to get used to the idea.

That recognition is corrosive. It is corrupting of the very idea of
the rule of law. And when we reckon the cost of this corruption, any
losses of the content industry pale in comparison.

Copyright law must be changed. Here are just five changes that would make a world of difference…

The problem with Lessig’s argument is that he’s using edge cases in order to promote reform which would affect everyone. Most times that people make copies of digital media, they’re not doing anything creative with them – they’re just using them, listening to them, reading them, watching them.

Ironically, using edge cases in this way is exactly what the content industries do, too. They declare that every copy made is a sale lost, which is equally absurd. Yes, there are people who no longer buy music because they can rip it off, but those are the edge cases as the insane success of Apple’s iTunes Store shows. Most copying falls into the category of "victimless crime", simply because no one has been deprived of even a potential sale.

Law, as Lessig should know, cannot be framed from the edge cases. If you try and do that, you end up with the absurd situation we’re in with the government’s demands for 28 42 days detention without trial, not because it says it needs it, but because there may be edge cases where it might need it. Law has to be created from the middle, from behaviour that’s typical, or it inevitably fails.

Lessig is also behind the times with his call for deregulation of what he terms "the amateur remix". The world of content creation is no longer one of amateurs and professionals: when you can monetize content within minutes by using AdSense, the distinction isn’t one of money made. In that sense, we can all be professionals, if we choose. As soon as something is shared on the Internet, it is no longer amateur – because someone, somewhere, will monetize it. 

And if Lessig really means his statement that "when YouTube makes the amateur remix publicly available, some compensation to Mr. Gil is appropriate" then his solution is no solution, because there’s no notion of who pays. Does Google pay? I can’t see Google wanting to admit it’s responsible for the content on YouTube. Does the "amateur" creator pay? Yeah, Larry sure he does. And if he doesn’t, what then? Back to the courts?

Where Lessig is completely correct, though, is in the need to simplify and make more efficient the process of copyright. A term of life plus anything is ludcrous: we want creators to create, not sit on songs as "pension plans" (they can get a bloody pension plan like everyone else).

Copyright needs reform because for the first time in perhaps a hundred and fifty years it can truly work to protect everyone. Digital media levels the playing field – and copyright needs to protect everyone, not just those who can afford the biggest lawyers.

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