Monday, February 09, 2009

Remix: Lessig on the Past, Present and Future of Copyright

Cyberprophet Lawrence Lessig has hit hard in his latest book on what's wrong with copyright. In the past, the world has really not been willing to listen. In Free Culture (2004), he recounted his failure to persuade the U.S. Supreme Court of the toxic effects of extending the duration of copyright protections. For any lawyer whose ambitions include arguing before the U.S. Supreme Court, it is a serious and important account of how to craft compelling arguments. In that work, Lessig blamed his failure to persuade the Nine on his own hubris - his insistence that he was correct on the law and that he did not have to show by factual arguments that the extension truly caused harm.
In Remix, Lessig shows the federal judiciary that he's done his penance. Morality, children, founding fathers, and Posnerian economic analysis are brought out in an attempt to bring the Chicago School around. He calls for deregulation, he praises Jack Valenti's morality, he waives the flag, he kisses babies, he argues externalities. But in characterizing the "copyright war" as being a failure and comparing it with the war on drugs or the war in Iraq, he has not shied away from arguments sure to alienate those same folks.
Well done! In the end, the world is starting to understand what all of those nerds were trying to tell us years ago about criminalizing the behavior of an entire generation. Lessig takes on the tremendous task of describing our new digital economy in economic terms. Before we were all RO (Read Only) now we all RW (Read and Write) with our digital content. Lessig teaches us about how this new RW culture will develop and gives concrete examples, as well as showing that RO culture will continue to thrive. As digitization hits the average consumer and the grandchildren of the federal judiciary are mixing and sampling away, Lessig's voice in the wilderness will come to be perceived as wisdom before its time.
And yes, he makes the point that he thinks copyright owners will make more money doing things his way. And yes, lest we forget, he stated nine times in his last work that he did not want to abolish copyright and he is saying it AGAIN!
Remix's care to put some spoonfuls of sugar with the medicine, its tone of greater personal humility, and its powerful arguments ensure that this work will be influential. I suspect that Judge Posner got a courtesy copy. I don't think that the suggestions about opt-in copyright registration make much sense in light of the Berne Convention and the reality that no one will remember to register years after creation, but maybe his next book will persuade.

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