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Lawrence Lessig: Thank you very much. It's extremely cool to be here.

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It's just about as cool as when I spoke at Pixar.

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I think of these two as being highlights of my career (check).

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So, thank you very much for having me.

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I have two small ideas I want to use as an introduction to an argument,

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about the nature of access to scientific knowledge in the context of the internet,

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and use that argument as a step towards a plea about what we should do.

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So here is the first idea.

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I want to call it the "White-effect".

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And I name that after Justice Byron White, justice of the US Supreme Court,

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appointed by John F. Kennedy - here he is in 1962

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- famous before that as 'Whizzer' White on the Yale University football team

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When he was appointed to the Supreme Court, he was a famous liberal,

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renowned liberal, the only appointee that John Kennedy had to the Supreme Court.

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But 'Whizzer' White grew old, and he is probably most famous for an infamous opinion,

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which he penned on behalf of the Supreme Court, Bowers v. Hardwick,

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an opinion where the Supreme Court upheld the Criminalization of Sodomy law.

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Here is the passage: 'Against this background, to claim that a right to engage

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in such conduct' - homosexual sodomy - 'is "deeply rooted in this Nation's history and tradition"

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or "implicit in the concept of ordered liberty" is, at best, facetious.'

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Now, this is what I want to think of as the "White Effect".

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To be a liberal or a progressive is always relative to a moment, and that moment changes,

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and too many are liberal or progressive no more.

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So, that's the "White effect". Here is the second idea.

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The Harvard Gazette is a kind of propaganda publication of Harvard University,

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it talks about all the happy things at Harvard.

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So here's an article that it wrote, about an extraordinary macro-economist,

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Gita Gopinath, who has just come to Harvard, received tenure last year

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and is one of the most influential macroeconomists in the United States right now.

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This article talks about her work and her research, and at the very end,

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there is this puzzling passage, where it says:

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'Still, the shelves in her new office are nearly bare, since, said Gopinath,

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"Everything I need is on the Internet now." '

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Right, that's the second idea. Here is the argument.

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So, copyright is a regulation by the State intended to change

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a regulation by the market. It's an exclusive right, a monopoly right,

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a property right granted by the State, which is necessary

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to solve an inevitable market failure.

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Now, by saying that it's necessary to solve an inevitable market failure,

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I'm marking myself as a pro-copyright scholar,

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in the sense that I believe copyright is necessary, even in a digital age.

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Especially in a digital age, copyright is necessary to achieve

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certain incentives that otherwise would be lost.

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But in the internet age, what we've seen as a fight about copyright,

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about the scope of copyright, waged most consistently in the context

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of the battle over artists' rights, in particular, in the context of music,

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where massive 'sharing' - sharing which is technically illegal - has lead to a fight

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fought by artists and especially by artists' representatives.

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And we from the Free Culture movement, have challenged the people

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who have been waging that fight.

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And they defend copyright in the context of that fight.

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But if we get above the din of this battle, the important thing to keep in mind

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is that both sides in this fight acknowledge that copyright is essential

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for certain creative work,

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and we need to respect copyright for that creative work.

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We, from the Free Culture movement, need to respect copyright for that work,

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we need to recognize that there is a place for sensible copyright policy

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to protect and encourage that work.

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But, however - and here is the important distinction -

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Not only artists rely upon copyright, copyright is also relied upon by publishers,

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and publishers are a different animal.

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We don't have to be as negative as John Milton was when he wrote publishers are

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"Old patentees and monopolizers in the trade of books

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- men who do no labor in an honest profession, to [them], learning is indebted."

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We don't have to go quite that far to recognize why publishers are different,

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that the economic problem for publishers is different

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from the economic problems presented by creating.

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So who is copyright for? The publishers or the artists?

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Well, since the beginning of copyright in the Anglo-American tradition,

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the Statute of Anne of 1710, there has been this argument about whether copyright

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was intended for the publishers or the artists.

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When the Statute of Anne was originally introduced, it gave a perpetual term of copyright,

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which the publishers understood to be a protection for them.

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It was then amended to give just a limited term for copyright.

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Publishers were puzzled about that, because it wouldn't make sense to give a limited term

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if it was the publisher that was to be protected.

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In 1769, a court case in the context of Millar v. Taylor seemd to suggest that

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despite the limitation of the Statute of Anne, copyright was for ever.

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But in 1774, in a very famous case about this book, The Seasons, by James Thomson,

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the House of Lords have held that copyright protected by the Status of Anne was limited,

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holding for the first time that works passed into the public domain.

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And for the first time in English history, works including Shakespeare

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passed into the public domain. And in this moment, we can say Free Culture was born.

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And it also clarified that copyright was not intended for the publisher.

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Even if it benefited the publishers, it was a creative right

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and author's right. Even if benefitting publishers, copyright was for authors.

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So, I remark these obvious borders about the scope of copyright,

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because we tend to forget them. We've been fighting a battle in the context of copyright

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where copyright is essential, and we are spending too little attention

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about a battle in a context where copyright is not essential.

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And I mean by that, in the context of science, in the context that Gopinath was speaking of

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when she talked about everything being available on the internet.

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And the consequence of failing to pay attention to this second context

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within which this battle is being waged is that there is a trouble here

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that too few see.

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So let's think about this claim that everything is on the internet now.

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What does that mean?

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Here is a particular example to evaluate what that means.

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Much of my work, these days, is focusing on corruption

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in the context of this institution, Congress.

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So let's say that we wanted to study, you wanted to study with me,

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corruption in this context. Go to Google Scholar and enter a search for campaign finance.

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Here are the top articles that would be listed from that search.

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So let's say you wanted to browse through these articles

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and get a sense of campaign finance and how it might be related to corruption in Congress.

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So here are the top 10 articles. This first one, a very famous one

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by my former colleagues Pam Karlan and Sam Issacharof.

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You would find, to get access to this article, you'd have to pay $29.95.

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The second article, housed at JSTOR, you'd have to get through to get permission

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from the Columbia Law Review - not quite clear how you would do that.

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Third article, again, $29.95. The fourth article, protected by Questia,

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we learn that you can get a 1-day free trial to all these Oxford University Press articles,

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you'd only have to pay when that day is over 99 dollars

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to continue for a year.

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Here is the 4th article again, protected by JSTOR.

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The 5th article, it's an economics article, so the price is right on the surface:

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10 dollars to purchase access to this article.

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Here's the 7th article, Columbia Law Review.

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8th article, Columbia Law Review, 9th article, protected again by JSTOR,

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10th article, $29.95. So, how accessible is this information to the general public?

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Well, one of these you can get access to for free, at least one time only,

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One of them you can pay $10 for. 3 of them, $29.95, and 5 of them, terms unknown,

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protected by JSTOR.

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So, when Gopinath says "Everything I need is on the internet",

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what does she mean? What she means is if - and this is a big if -

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you're a tenured professor in an elite university or we could say a professor,

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or a student or professor in an elite university, or maybe

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a student or professor at a US university, if you are a member of the knowledge elite,

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then you have effectively free access to all of this information.

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But if you are from the rest of the world? Not so much.

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Now, the thing to recognize is we built this world,

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we built this architecture for access that flows from the deployment of copyright,

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but here, copyright to benefit publishers. Not to enable authors.

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Not one of these authors gets money from copyright.

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Not one of them wants the distribution of their articles limited.

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Not one of them has a business model that turns upon restricting access to their work.

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Not one of them should support this system.

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As a knowledge policy for the creators of this knowledge, this is crazy.

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And the craziness doesn't stop here.

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So, my third child is this extraordinarily beautiful girl, Samantha Tess.

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When she was born, the doctors were worried she had a condition

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that would suggest jaundice. I had jaundice as a baby, so I didn't think it was serious,

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and I was told very forcefully by her doctor, this is extroardinarily serious.

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If this condition manifest in the dangerous condition, it would produce brain damage,

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possibly death.

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So, of course, we were terrified. I went home and I did what every academic did,

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I pulled everything I could from the web to study about what jaundice was

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and what the conditions were. Now, because I am a Harvard professor,

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of course, I didn't have to pay to get access to this information, but I just kept the total.

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To get access to these 20 articles that I wanted access to was $435,

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for the ordinary human, not a Harvard professor. OK.

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So I gathered these articles and set them aside, believing this problem

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would not manifest itself in such a serious way.

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But on her third day, she fell into a stupor, and we called the doctor,

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and the doctor was panciked and he said we had to get to the hospital immediately.

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So, at 3 o'clock in the morning, we trundled the baby up and raced to the hospital.

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We were sitting in the waiting room, and I brought the articles with me,

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because I wanted something to do, to distract me from the terror

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that my child had this condition.

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And I picked up the first of these articles, which is actually free,

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published on the web for free, at the American Family Physician,

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and I started reading about this condition.

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And I got to this table, a table that was going to describe

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when you should worry about whether the child would have too severe of this exposure.

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I turned the page, and this is what I found:

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"The rightsholder did not grant rights to reproduce this item in electronic media.

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For the missing item, see the original print version of this publication."

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And I had this moment of liberation from fear about my child,

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because I turned to fear about our culture. I thought, this is outrageous!

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The idea that we are regulating access down to the chart in an article

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that was published for free to help, not doctors, but parents

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understand what this condition was.

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We are regulating access to parts of articles.

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Now here and throughout our architecture for access,

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we are building an infrastructure for this regulation.

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Think of the Google Books project, which is perfecting control down to the sentence,

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the ability to regulate access down to the sentence.

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By the way, I alway forget to tell this: the kid is fine, she didn't have jaundice,

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it is a complete non issue.

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But the point is, we are archintecting access here, for what purpose?

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To maximize revenue. And why? Revenue to the authors?

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Revenues necessary to produce the incentive to create?

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Is this a limitation that serves any of the real objectives of copyright? (14:00)

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The answer is no.

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It is simply the natural result of for-profit production

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for any good that we, quote, must have.

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As Bergstrom and McAfee describe in a really fantastic little bit of work,

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if you compare the cost per page of for-profit publishers

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and the cost per page of not-for-profit publishers in these different fields of science,

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it's a 4 and a half times factor difference cost per page.

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That is a function of different, of these having different objectives.

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One objective is to spread knowledge: that's the not-for-profit publishers,

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and one objective, to maximize profit: that's the for-profit publishers.

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Now, this architecture for access is beginning to build resistance.

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So, think about story of JSTOR.

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JSTOR was launched in 1995, with an extraordinary amount of funding

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from the Mellon Foundation. That funding produced a huge archive

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of journal articles. So that there are now more than 1200 journals, 20 collections,

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53 disciplines, 303'000 issues, about 28 million pages in JSTOR archive.

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When this archive was launched, everybody thought it was brilliant.

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Everybody thought the access here was extraordinary.

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But today? There is increasingly criticism growing out there

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about how JSTOR makes its information accessible.

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We could think of it as a kind of "White effect".

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It was liberal when it was launched, but what has it become as it has grown old?

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So, for example, here is an article published in the

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California Historical Society Quarterly. It's 6 pages long.

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To get it, you have to pay $20 to JSTOR, this non-profit organization,

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leading Carl Malamud, who of course is famous for his Public Resources site,

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to tweet in the following way: "JSTOR is morally offensive.

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$20 for a 6-page article, unless you happen to work at a fancy school."

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Now, you might say, "This is a really important academic archive",

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but the question is whether this really important academic archive

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is going to become a kind of RIAA for the academy.

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Begging the question that the "White effect" always begs,

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whether we could do this better under a different set of assumptions.

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Now, of course the Open Access movement is the movement that was launched

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to try and do this better under different circumstances.

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Now, it has a long history, but its real push was inspired by

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a dramatic increase in the cost of journals.

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So, if this is a study between 1986 and 2004 by the American Research Libraries,

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this is the increase in inflation, this is the increase in the cost of serials,

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it's obvious that the market power of these publishers is being exploited,

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because the purchasers of these serials have no choice but to buy them.

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It's in part motivated by this cost concern, it's also motivated by a sense of unfairness.

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We do all the work, they get all the money, here.

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So the response to these two kinds of concerns has been two:

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#1 an open access self-archiving movement, where the push has been

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"Let's get as many things out there archived on the Web as we can,

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pre-prints and whatever we can get up, and make sure

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the Web can make them accessible" - and an Open Access publishing movement.

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Now, what's the difference between these two movements?

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The difference is licensing. Some "open" is "free", in the sense that Richard Stallman

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made famous by his quote: "Free software is a matter of liberty, not price.

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To understand the concept, you should think of free as in free speech,

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not as in free beer."

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So, some aspect of the Open Access publishing is free as in free speech,

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some "open" is not. Some is just free as in: "You can download it freely,

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but the rights that you get from the download are just as broad

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as narrowly granted by some implicit copyright rule.

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Now, "free", as in licensed freely, has been the objective that the Science Commons project,

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which is a project that Creative Commons has been pushing,

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and pushing as part of a broader strategy for producing

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the information architecture that science needs, as they announce

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in their "Principles for open science". There are four principles here.

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The first is, there should be open access to literature, by which Science Commons says:

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you should be on the internet, literature "should be on the internet

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in digital form, with permission granted in advance

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to users to read, download, copy, distribute, print, search or link

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to the full texts of articles, crawl them indexing, pass them data to software,

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or use them for any other lawful purpose,

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without financial, legal or technical barriers other than those inseparable

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from gaining access to the internet itself."

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That's what "free", here, means.

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Second, access to research tools: there should be "materials necessary

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to replicate funded research - cell lines, model animals, DNA tools,

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reagents, and more - should be described in digital formats,

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made available under standard terms of use or contracts,

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with infrastructure or resources to fulfill requests to qualified scientists,

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and with full credit provided to the scientist who created the tools."

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#3 Data should be in the public domain. "Research data, data sets, databases,

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and protocols should be in the public domain."

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meaning no copyright restrictions at all.

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And 4, Open cyber-infrastructure:

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"Data without structure and annotation is an opportunity lost.

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Research data should flow in an open, public and extensible infrastructure

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that supposrts its recombination and reconfiguration into computer models,

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its searchability by search engines,

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and its use by both scientists and the taxpaying public.

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This infrastructure is an essential public good."

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Now, my view is, this the right way - you might think this is the left way -

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but it's the correct way to instantiate this Open Access movement.

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The values and the efficiency and the justice in this architecture

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are the right values, efficiency and justice for an Open Access movement.

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So let's call it, following Stallman, the Free Access Movement.

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And the critical question of the Free Access movement

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is the license that governs access to the information being provided.

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Does the license grant freedoms?

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And that, of course, was the motivation between the Public Library of Science -

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every one of their articles is published under a Creative Commons

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Attribution license, the freeest license we have.

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And that is increasingly the practice, surprisingly, of the largest publishers,

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as described by this wonderful project housed here at CERN,

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which is studying Open Access publishing.

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This is the first of three stages of this project. When studying the large publishers,

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this study concludes that "Half of the large publishers use some version

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of a Creative Commons license. These seven publish 72% of the titles

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and 71% of the articles investigated.

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And of these, 82% use the freeest license, cc-by, and 18% use cc-by-nc", non commercial.

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And that of course is an excellent report on the progress of this free access movement

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in the context of the largest publishers.

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But what's not excellent in this story is the other publishers here.

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For these other publishers, only 73% you can determine copyright status (check)

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69% transfer the copyright to the publisher. Only 21 % of the articles

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have any Creative Commons license attached at all.

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Now, this is because these other publishers are using copyright as a means,

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a means to a non-knowledge ends, to a non-copyright ends.

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So, for example, they are using it to support the societies

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that might happen to be associated with publishing

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that particular journal, that society that might be studying

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one particular of science.

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That society, of course, is valuable, but what they are doing

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is using copyright to support that society.

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And the consequence of that strategy is to block access to all but the few.

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We don't achieve the objectives of the Enlightenment,

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we achieve the reality of an elite-nment, the elite-nment

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which describes the way in which we spread knowledge

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despite the ideas of the Enlightenment.

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And the point I'm emphasizing here is that it's for no good copyright reason.

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Now, the slowness inside of science to embrace this more broadly,

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especially among the smaller publishers, may surprise some,

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or maybe it doesn't surprise. The whole design of science

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is to be a fad-resistor, the idea is to have an infrastructure

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that avoids fads, and tradition then becomes the metric of what's right

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or of what's good in science.

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But I think it's time to recognize that Free Access, as in free speech, access

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is no fad.

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And it's time to push this non fad more broadly in the context of science.

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Now, just because I'm talking about how bad some area of science is,

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I don't mean to suggest that the arts is good, right?

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We have practices in the context of the arts that are just as bad, here.

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For example, think about a recent episode around YouTube.

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You know, we should not minimize the significance of YouTube

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in the infrastructure of culture right now.

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YouTube now has 43 different languages.

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There is more uploaded in one month on Youtube

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than was broadcast by the major networks in the United States

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over the last 60 years.

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Every single day, 6 new years of video gets uploaded to YouTube.

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There are 2 billion views of YouTube every single year.

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every single day, sorry. That's 40% increase over just the last year.

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And I've been famously a friend (check) of this extraordinary site

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because I celebrate the kind of read-write creativity

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that I think YouTube has encouraged.

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And I got this sense of what we should think of as read-write creativity

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when I was reading testimony at this place

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by this man, John Philip Souza, in 1906.

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when he was - I didn't read it in 1906 but the testimony was given in 1906 -

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When Souza was testifying about this technology,

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what he called "talking machines".

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Now, Souza was not a fan of the talking machines.

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This is what he had to say about them:

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"These talking machines are going to ruin the artistic development

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of music in this country.

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When I was a boy, in front of every house in the summer evenings

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you would find young people together singing the songs

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of the day or the old songs.

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Today you hear these infernal machines going night and day.

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We will not have a vocal chord left," Souza said,

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"The vocal chords will be eliminated by a process of evolution,

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as was the tail of man when he came from the ape."

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Now this is the picture I want you to focus on.

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This picture of "young people together, singing the songs of the day

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or the old songs".

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This is a picture of culture. We could call it, using modern computer terminology,

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a kind of read-write culture.

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It's a culture where people participage in the creation and the re-creation

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of their culture: in that sense, it's read-write.

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And the opposite of read-write creativity, then, we should call

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"read-only" culture. A culture where creativity is consumed

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but the consumer is not a creator. A culture, in this sense, that's top-down,

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where the vocal cords of the millions of ordinary potential creators

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has been lost, and lost, because, as Souza said,

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because of these infernal machines: technology, technology like this,

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or technology like this, to produce a culture like this,

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a culture which enabled efficient consumption, what we call "reading",

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but inefficient amateur production, what we should call "writing".

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A culture good for listening, but not a culture good for speaking,

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a culture good for watching, a culture not good for creating.

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Now, the first popular instantiation of the internet,

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long after you guys gave us the read-write web,

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but the first one people really paid attention to,

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around 1997 and 1998, was a read-only internet.

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So, Napster, which of course, built the largest music archive,

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is still a music archive of music created by others

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and the legal version, Music Store, was an archive of the music

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created by others, which you could buy for 99 cents.

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These were technologies to enable access,

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but access to culture created elsewhere.

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But then, shortly in - after the turn of the century, I think,

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the internet became fundamentally read-write.

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People began taking, and remixing, and sharing

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their creativity on the internet, and YouTube was the platform for that.

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So, my favorite example, which I first saw on YouTube, is this:

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[Read my lips by: Atmo - http://www.youtube.com/watch?v=rhlHUTBgAMw]

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"Bush: My love, there's only you in my life,

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the only thing that's right.

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Blair: My first love: you're every breath that I take,

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you're every step I make.

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Bush: And I, I want to share

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Bush and Blair: all my love with you

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Bush: No one else will do.

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Blair: And your eyes

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Bush: Your eyes, your eyes

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Bush and Blair: they tell me how much you care for...

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announcer: remember to(?) take dictation"

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Lessig: OK. And then.more recently, I don't know if (?) many of you

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have seen this extraordinary site ThruYou.

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This is a site that takes content only from YouTube

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and remixes it to produce albums and videos. I mean this is his latest, you know.

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Voice: This is my mother:

402
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Mother: Howdy, howdy. OK.

403
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[pays a continuo on keyboard]

404
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Tenesan1 [see http://www.youtube.com/watch?v=-J8sSXO9VWk ]

405
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Tenesan1: The song I'm going to sing, I wrote, is called "Green"

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because ... (?)

407
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[Tenesan1 sings "Green" on the keyboard continuo]

408
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[Horn enters]

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[Other instruments enter]

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Lessig: So this is then what I think of as a platform for read-write creativity.

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But then the second stage of this, I think is ultimately

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much more interesting. It's the way that this platform

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has become a platform for read-write communities,

414
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which means creativity, which then gets remixed by others

415
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in response to the initial read-write creators.

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So here is an example. This video:

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[ "Crank That" by Soulja Boy - http://www.youtube.com/watch?v=sLGLum5SyKQ + Superman:] You Soulja Boy..

418
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I got a new dance fo you all called the soulja boy


419
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You gotta punch then crank back three times from left to right

420
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Aaah!

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Lessig: so that video inspired this video:

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[video 2] You Soulja Boy ...

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Lessig: which then inspired this video

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[Video 3] Soulja Boy ...

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Lessig: Well here is another example. I'm sure many of you remember

426
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these extraordinary movies by John Hughes,

427
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what we used to think of as the Brat Pack, until we knew

428
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that there was a Brat Pack before these guys.

429
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So this is the first bit of cultural,

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and I think here is the second.

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This is a music video by the band Phoenix, with their song Lisztomania:

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[Lisztomania: Phoenix' clip]

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Lessig (over clip): So classic music video style

434
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[clip continues]

435
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So sentimental

436
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Lessig: Somebody got the idea that they would take John Hughes' content

437
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and remix it with the music by Phoenix. They produced this:

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[remix] So sentimental

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not sentimental, no

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romantic not disgusting yet

441
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Darling, I'm down and lonely when with the fortunate is only

442
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I've been looking for something else

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Do let, do let, do let, jugulate, do let, do let, do

444
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Let's go slowly discouraged

445
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Distant from other interests on your favorite weekend ending...

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Lessig: Then somebody had the idea that they would make a local version

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of this remix video. So this is the Brooklyn version:

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[Brooklyn remix:]

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Lessig: And then San Francisco decided they'd like to copy:

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[San Francisco remix:]

451
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Lessig: And then Boston University decided they would copy:

452
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[Boston U remix:]

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Lessig: There are others, literally scores of these on the internet,

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from every place around the world.

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(1 sentence ????)

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every other place... these people doing the same kind of remix.

457
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The point to recognize is that this is then what Souza was romanticizing

458
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when Souza was talking about the young people getting together

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and singing the songs of the day or the old songs.

460
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But they are not singing the songs or the old songs

461
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in their backyard or on the corner, they are now singing them

462
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on this free digital platform that allows people to sing and respond,

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and respond again all across the world,

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in my view, important and valuable, in understanding

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how this kind of culture develops and spreads.

466
99:59:59,999 --> 99:59:59,999
Now, is it legal?

467
99:59:59,999 --> 99:59:59,999
Well, YouTube has just stepped into this battle, of whether it's legal.

468
99:59:59,999 --> 99:59:59,999
They've launched this Copyright School

469
99:59:59,999 --> 99:59:59,999
So I will give you a little bit of their copyright school.

470
99:59:59,999 --> 99:59:59,999
[video from http://www.youtube.com/copyright_school - original subtitled in ca 40 languages]

471
99:59:59,999 --> 99:59:59,999
Everybody has really been looking forward to the new video

472
99:59:59,999 --> 99:59:59,999
from Lumpy and the Lumpettes.

473
99:59:59,999 --> 99:59:59,999
Even Lumpy.

474
99:59:59,999 --> 99:59:59,999
Russell's a huge fan. He can't wait to tell all his friends about it.

475
99:59:59,999 --> 99:59:59,999
Hey, Russell, you didn't create that video!

476
99:59:59,999 --> 99:59:59,999
You just copied someone else's content.

477
99:59:59,999 --> 99:59:59,999
Lessig: OK, this first part is pretty standard,

478
99:59:59,999 --> 99:59:59,999
talking about copying people's content and uploading,

479
99:59:59,999 --> 99:59:59,999
and even copying in a live performance and uploading.

480
99:59:59,999 --> 99:59:59,999
And that's fair, that's true, that's accurate in its statement

481
99:59:59,999 --> 99:59:59,999
of what copyright law is, and I think what copyright law should be.

482
99:59:59,999 --> 99:59:59,999
But I want to focus on their talk about remix,

483
99:59:59,999 --> 99:59:59,999
which might be confusing to you, and if you do, you should buy

484
99:59:59,999 --> 99:59:59,999
multiple copies of my book, "Remix" to understand what it's about.

485
99:59:59,999 --> 99:59:59,999
But here's YouTube's version of the story of remix

486
99:59:59,999 --> 99:59:59,999
[YouTube video cont.] Oh, Russell! Your reuse of the Lumpy's content is clever,

487
99:59:59,999 --> 99:59:59,999
but did you get permission for it?

488
99:59:59,999 --> 99:59:59,999
Mashups or remixes of content may also require permission

489
99:59:59,999 --> 99:59:59,999
from the original copyright owner, depending on whether or not

490
99:59:59,999 --> 99:59:59,999
the use is a fair use.

491
99:59:59,999 --> 99:59:59,999
In the United States [text shown onscreen is read very fast] ...

492
99:59:59,999 --> 99:59:59,999
you should consult a qualified copyright attorney.

493
99:59:59,999 --> 99:59:59,999
Lessig: OK. "Consult a qualified copyright attorney"?

494
99:59:59,999 --> 99:59:59,999
These are 15-year olds. You're trying to teach 15-year olds

495
99:59:59,999 --> 99:59:59,999
how to obey the law, and what you do is you give them

496
99:59:59,999 --> 99:59:59,999
this thing called fair use, and you read it so fast

497
99:59:59,999 --> 99:59:59,999
nobody can understand it.

498
99:59:59,999 --> 99:59:59,999
You believe you've actually explained something sensible?

499
99:59:59,999 --> 99:59:59,999
This is crazy talk.

500
99:59:59,999 --> 99:59:59,999
Of course we train lawyers to understand it, and not think it's crazy talk,

501
99:59:59,999 --> 99:59:59,999
but non lawyers should recognize it's crazy talk.

502
99:59:59,999 --> 99:59:59,999
It's an absurd system here.

503
99:59:59,999 --> 99:59:59,999
And of course, a sensible system would say:

504
99:59:59,999 --> 99:59:59,999
"Then it should be plainly legal for Russell to make a remix,

505
99:59:59,999 --> 99:59:59,999
a non commercial consumer making a remix of content

506
99:59:59,999 --> 99:59:59,999
that he sees out there, even if it's not legal for YouTube

507
99:59:59,999 --> 99:59:59,999
to distribute it without paying some sort of royalty

508
99:59:59,999 --> 99:59:59,999
to the copyright owner whose work has been remixed.

509
99:59:59,999 --> 99:59:59,999
Now the point is, the significance of this kind of culture,

510
99:59:59,999 --> 99:59:59,999
this kind of remix culture, and the opportunity

511
99:59:59,999 --> 99:59:59,999
for this remix culture is recognized by people on the left,

512
99:59:59,999 --> 99:59:59,999
and on the right. Here is my favorite little bit.

513
99:59:59,999 --> 99:59:59,999
It's a little bit bad video, but it's by one of my favorite

514
99:59:59,999 --> 99:59:59,999
libertarians from Cato Institute, which is one of the

515
99:59:59,999 --> 99:59:59,999
most important libertarian think-tanks in the United States,

516
99:59:59,999 --> 99:59:59,999


517
99:59:59,999 --> 99:59:59,999
talking about this:

518
99:59:59,999 --> 99:59:59,999
Libertarian man: Copyright policy isn't just about how to incentivize

519
99:59:59,999 --> 99:59:59,999
the production of a certain kind of artistic commodity.

520
99:59:59,999 --> 99:59:59,999
It's about what level of control we're going to permit to be

521
99:59:59,999 --> 99:59:59,999
exercized over our social realities, social realities that are now

522
99:59:59,999 --> 99:59:59,999
inevitably permeated by pop culture.

523
99:59:59,999 --> 99:59:59,999
I think it's important that we keep these two different kinds

524
99:59:59,999 --> 99:59:59,999
of public uses (?) in mind. If we only focus on how to

525
99:59:59,999 --> 99:59:59,999
of public visions in mind.

526
99:59:59,999 --> 99:59:59,999
If we only focus on how to maximize the supply of one,

527
99:59:59,999 --> 99:59:59,999
I think we risk suppressing this different and richer

528
99:59:59,999 --> 99:59:59,999
and, in some ways, maybe even more important one.

529
99:59:59,999 --> 99:59:59,999
Lessig: Bingo. That's the point.

530
99:59:59,999 --> 99:59:59,999
There are two kinds of cultures her. The commecial culture

531
99:59:59,999 --> 99:59:59,999
and the amateur culture.

532
99:59:59,999 --> 99:59:59,999
And we have to have a system that tries to recognize and encourage both.

533
99:59:59,999 --> 99:59:59,999
And even YouTube, now, the company most responsible

534
99:59:59,999 --> 99:59:59,999
for this revival of this remix culture,

535
99:59:59,999 --> 99:59:59,999
even YouTube, now, is criminalizing the remixers.

536
99:59:59,999 --> 99:59:59,999
OK, now that's the argument.

537
99:59:59,999 --> 99:59:59,999
Here is what I think we need to do here.

538
99:59:59,999 --> 99:59:59,999
In both these contexts, both science and culture,

539
99:59:59,999 --> 99:59:59,999
we need reform.

540
99:59:59,999 --> 99:59:59,999
That's not to say we need the abolition of copyright.

541
99:59:59,999 --> 99:59:59,999
There are copyright abolitionists out there, and I'not one them.

542
99:59:59,999 --> 99:59:59,999
What we need is reform, both of the law and of us.

543
99:59:59,999 --> 99:59:59,999
So, of the law: I, last year, had the opportunity -

544
99:59:59,999 --> 99:59:59,999
surprising, from the perspective of 10 years ago -

545
99:59:59,999 --> 99:59:59,999
but I was invited by WIPO to talk to WIPO,

546
99:59:59,999 --> 99:59:59,999
and both my presentation and the current Director General

547
99:59:59,999 --> 99:59:59,999
has a conception of what WIPO should do here (40:20)

548
99:59:59,999 --> 99:59:59,999
and it's very similar. They should launch what we could think of

549
99:59:59,999 --> 99:59:59,999
as a Blue Skies Commission, a commission to think about

550
99:59:59,999 --> 99:59:59,999
what architecture for copyright makes sense in the digital age.

551
99:59:59,999 --> 99:59:59,999
The presumption is, copyright is necessary,

552
99:59:59,999 --> 99:59:59,999
but the presumption is also that the architecture from the 20th century

553
99:59:59,999 --> 99:59:59,999
doesn't make sense in a digital context.

554
99:59:59,999 --> 99:59:59,999
And the elements of, in my view, of this architecture

555
99:59:59,999 --> 99:59:59,999
that would make sense, are 5.

556
99:59:59,999 --> 99:59:59,999
#1 Copyright has got to be simple. If it purports to regulate

557
99:59:59,999 --> 99:59:59,999
15 year olds, 15 year olds must be able to understand it.

558
99:59:59,999 --> 99:59:59,999
They don't understand it now.

559
99:59:59,999 --> 99:59:59,999
No one understands it now.

560
99:59:59,999 --> 99:59:59,999
And we need to remake it, to make it simple,

561
99:59:59,999 --> 99:59:59,999
if it tends to regulate as broadly as it regulates.

562
99:59:59,999 --> 99:59:59,999
#2 It needs to be efficient.

563
99:59:59,999 --> 99:59:59,999
Copyright is a property system. It also happens to be

564
99:59:59,999 --> 99:59:59,999
the most inefficient property system known to man.

565
99:59:59,999 --> 99:59:59,999
We can't know who owns what in this system,

566
99:59:59,999 --> 99:59:59,999
because we have no system for recording ownership

567
99:59:59,999 --> 99:59:59,999
and allowing us to allocate ownership as we want.

568
99:59:59,999 --> 99:59:59,999
An the only remedy to that is to restore a kind of formality,

569
99:59:59,999 --> 99:59:59,999
at least a formality required to maintain a copyright.

570
99:59:59,999 --> 99:59:59,999
And this is a position that's even supported by the RIAA

571
99:59:59,999 --> 99:59:59,999
as one of the essential reforms to copyright.

572
99:59:59,999 --> 99:59:59,999
#3 Copyright has got to be better targeted. It's got to regulate selectively.

573
99:59:59,999 --> 99:59:59,999
So if you think about the distinction between copies and remix,

574
99:59:59,999 --> 99:59:59,999
and the distinction between the professional and the amateur,

575
99:59:59,999 --> 99:59:59,999
of course, we get this matrix - lawyers deal in two dimensions,

576
99:59:59,999 --> 99:59:59,999
you guys in hundred dimensions but here is my two dimensions -

577
99:59:59,999 --> 99:59:59,999
What we have in the current regime of copyright

578
99:59:59,999 --> 99:59:59,999
is presumption of copyright regulates the same

579
99:59:59,999 --> 99:59:59,999
across these four possibilities.

580
99:59:59,999 --> 99:59:59,999
But that's a mistake. Obviously copyright needs to regulate

581
99:59:59,999 --> 99:59:59,999
efficiently here, copies of professional works,

582
99:59:59,999 --> 99:59:59,999
so 10'000 copies of Madonna's latest CD is a problem

583
99:59:59,999 --> 99:59:59,999
that copyright law needs to worry about,

584
99:59:59,999 --> 99:59:59,999
But this area, amateurs remixing culture needs to be free

585
99:59:59,999 --> 99:59:59,999
of the regulation of copyright. Not fair use, but free use.

586
99:59:59,999 --> 99:59:59,999
Not even triggering copyright's concern.

587
99:59:59,999 --> 99:59:59,999
And then these two middle cases are harder.

588
99:59:59,999 --> 99:59:59,999
They need a little more freedom, but they need to assure

589
99:59:59,999 --> 99:59:59,999
some kind of control. So if you share Madonna's latest CD

590
99:59:59,999 --> 99:59:59,999
with your 10'000 best friends, that's a problem.

591
99:59:59,999 --> 99:59:59,999
There needs to be some response to that problem.

592
99:59:59,999 --> 99:59:59,999
And if you take a book and turn it into a movie,

593
99:59:59,999 --> 99:59:59,999
I think it's still appropriate that you get permission for that,

594
99:59:59,999 --> 99:59:59,999
though of course, you need to be able to remix

595
99:59:59,999 --> 99:59:59,999
the way that we saw Soderberg remix that video

596
99:59:59,999 --> 99:59:59,999
of Bush and Endless Love.

597
99:59:59,999 --> 99:59:59,999
The point her is that if you think about this, I'm talking about

598
99:59:59,999 --> 99:59:59,999
deregulating a significant space of culture,

599
99:59:59,999 --> 99:59:59,999
and focusing the regulation of copyright work (?) and do some good.

600
99:59:59,999 --> 99:59:59,999
#4 It needs to be effective. And effective means

601
99:59:59,999 --> 99:59:59,999
it must actually work in getting artists paid.

602
99:59:59,999 --> 99:59:59,999
The current system does not work in getting artists paid.

603
99:59:59,999 --> 99:59:59,999
And #5 It needs to be realistic.

604
99:59:59,999 --> 99:59:59,999
Think about the problem of peer-to-peer, quote, piracy internationally,

605
99:59:59,999 --> 99:59:59,999
We've, for the last decade, been waging what is referred to

606
99:59:59,999 --> 99:59:59,999
as a war. My friend, the late Jack Valenti, former head of the

607
99:59:59,999 --> 99:59:59,999
Motion Picture Associationof America used to refer to it as

608
99:59:59,999 --> 99:59:59,999
his own, quote, "terrorist war", where apparently the terrorists in this war

609
99:59:59,999 --> 99:59:59,999
are our children.

610
99:59:59,999 --> 99:59:59,999
Now this war has been a total failure.

611
99:59:59,999 --> 99:59:59,999
It has not achieve its objective of reducing copyrights sharing

612
99:59:59,999 --> 99:59:59,999
or ilegal peer-to-peer file sharing.

613
99:59:59,999 --> 99:59:59,999
And I know the response of some to this totally failed war

614
99:59:59,999 --> 99:59:59,999
is to continue to wage that war forever, and ever more viciously,

615
99:59:59,999 --> 99:59:59,999
but I suggest we adopt the opposite response here.

616
99:59:59,999 --> 99:59:59,999
We sue for peace. We sue for peace in this war,

617
99:59:59,999 --> 99:59:59,999
and consider proposals that would give us the opportunity

618
99:59:59,999 --> 99:59:59,999
to achieve the objectives of copyright,

619
99:59:59,999 --> 99:59:59,999
without waging this war.

620
99:59:59,999 --> 99:59:59,999
So, compulsory licenses, voluntary collective licenses (44:05)

621
99:59:59,999 --> 99:59:59,999


622
99:59:59,999 --> 99:59:59,999
or the German Greens' suggestion of a cultural flat rate

623
99:59:59,999 --> 99:59:59,999
which would be collected and allocated to artists

624
99:59:59,999 --> 99:59:59,999
on the basis of the harm suffered because of P2P file-sharing,

625
99:59:59,999 --> 99:59:59,999
all of these are alternatives to waging a war

626
99:59:59,999 --> 99:59:59,999
to stop sharing, when sharing is of course at the core

627
99:59:59,999 --> 99:59:59,999
of the architecture of the Net,

628
99:59:59,999 --> 99:59:59,999
and all of them recognize that if we achieve

629
99:59:59,999 --> 99:59:59,999
that alternative, we don't need to block this system of sharing.

630
99:59:59,999 --> 99:59:59,999
Now, the thing to think about is, if we had had one of these alternatives

631
99:59:59,999 --> 99:59:59,999
10 years ago, what would the world look like today,

632
99:59:59,999 --> 99:59:59,999
how would it be different?

633
99:59:59,999 --> 99:59:59,999
Now one difference is, artists would get more money,

634
99:59:59,999 --> 99:59:59,999
they would have gotten more money, because

635
99:59:59,999 --> 99:59:59,999
while we have been waging war against artists [sic: "children"?]

636
99:59:59,999 --> 99:59:59,999
artists haven't got anything, only lawyers have.

637
99:59:59,999 --> 99:59:59,999
Businesses would have had more competition,

638
99:59:59,999 --> 99:59:59,999
the rules would have been clear, we would have more companies

639
99:59:59,999 --> 99:59:59,999
than just Apple and Microsoft thinking out

640
99:59:59,999 --> 99:59:59,999
how they could exploit this new digital ethnologies.

641
99:59:59,999 --> 99:59:59,999
But most important to me, is, we wouldn't have a generation

642
99:59:59,999 --> 99:59:59,999
of criminals who have grown up being called criminals

643
99:59:59,999 --> 99:59:59,999
because they are technically pirates, according to

644
99:59:59,999 --> 99:59:59,999
this outdated copyright law.

645
99:59:59,999 --> 99:59:59,999
So these 5 objectives would go into the conception of what

646
99:59:59,999 --> 99:59:59,999
this Blue Skies commission should think about

647
99:59:59,999 --> 99:59:59,999
and I think it should think of this in a 5 year process

648
99:59:59,999 --> 99:59:59,999
talking about something not to into effect for 10 years.

649
99:59:59,999 --> 99:59:59,999
Think of it as a kind of Map for Berne II, but Bern ii being

650
99:59:59,999 --> 99:59:59,999
a system that could work to achieve the objectives of copyright

651
99:59:59,999 --> 99:59:59,999
in a digital age. That's what the law should do.

652
99:59:59,999 --> 99:59:59,999
But most important right now is what we need to do.

653
99:59:59,999 --> 99:59:59,999
We, both in the context of business - so in the context of business,

654
99:59:59,999 --> 99:59:59,999
we need to think about how to better enable legal reuse

655
99:59:59,999 --> 99:59:59,999
of copyrighted material.

656
99:59:59,999 --> 99:59:59,999
And companies like Google and Microsoft's Bing

657
99:59:59,999 --> 99:59:59,999
need to do more here.

658
99:59:59,999 --> 99:59:59,999
We're in the age of remix, where writing is remix,

659
99:59:59,999 --> 99:59:59,999
where teachers tell students to go out to the web

660
99:59:59,999 --> 99:59:59,999
and gather as much content as you can in order to

661
99:59:59,999 --> 99:59:59,999
write a report about whatever it is they are assigning them

662
99:59:59,999 --> 99:59:59,999
to write reports about.

663
99:59:59,999 --> 99:59:59,999
That means Google and Bing need to help our kids

664
99:59:59,999 --> 99:59:59,999
do it legally, which they don't, right now.

665
99:59:59,999 --> 99:59:59,999
So for example, this extraordinary service, which Google

666
99:59:59,999 --> 99:59:59,999
gives you when you want to an image search:

667
99:59:59,999 --> 99:59:59,999
let's say you search for an image, you do an image search on flowers,

668
99:59:59,999 --> 99:59:59,999
This, over here - I don't know if you play with this -

669
99:59:59,999 --> 99:59:59,999
it is really extraordinary (46:12)