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'The Future of Ideas': Protecting the Old With Copyright Law
The New York Times: January 6, 2002
By DANIEL ZALEWSKI
Thanks to digital technology, a delightful new art form
emerged this year: the fan edit. Devotees of the pop singer
Bjork, for example, have begun running her songs through
their computers, tweaking the beats and instrumentation,
then posting hundreds of ''remixed'' versions on the Web.
Some of these edits are tone-deaf; others, however, trump
the original arrangements. And this summer, Mike J.
Nichols, a ''Star Wars'' addict living in Santa Clarita,
Calif., used his Macintosh to make a series of merciful
cuts to ''The Phantom Menace'' -- most notably, the virtual
elimination of the irksome Jar Jar Binks. Fans who obtained
a copy of Nichols's ''Phantom Edit'' through the Internet
hailed the arrival of a vastly improved (if not yet good)
This nascent genre might not be around for long, however.
Although the Bjork remixes remain openly posted on a Web
page, ''The Phantom Edit'' has met a more predictable fate
-- it's been squashed by lawyers. George Lucas's production
company, Lucasfilm Ltd., has threatened to sue the pants
off anyone who dares to set up a Web page permitting
downloads or trades videotaped versions on eBay. Why? ''We
can't allow them to duplicate and distribute our films for
profit,'' a press officer has explained.
This is the kind of wobbly argument that drives Lawrence
Lessig, a Stanford law professor, absolutely nuts. After
all, can a zillion-dollar company like Lucasfilm truly be
worried that a puckish effort like ''The Phantom Edit''
will torpedo its own DVD sales? And how can such a silly
fear justify the silencing of Nichols's artistic
Lessig's passionate new book, ''The Future of Ideas,''
argues that America's concern with protecting intellectual
property has become an oppressive obsession. ''The
distinctive feature of modern American copyright law,'' he
writes, ''is its almost limitless bloating.'' As Lessig
sees it, a system originally designed to provide incentives
for innovation has increasingly become a weapon for
attacking cutting-edge creativity.
Sadly, Lessig's grim assessment is dead on. Earlier this
year, for example, lawyers for Margaret Mitchell's estate
almost succeeded in banning ''The Wind Done Gone,'' a
slave-centered recasting of ''Gone With the Wind,'' on the
grounds that it was theft. (Indeed, the case is still tied
up in court.) And Baz Luhrmann, the director of ''Moulin
Rouge,'' was forced to revise his screenplay when Cat
Stevens's lawyers refused to allow him to use the song
''Father and Son.'' Why, Lessig asks, does American law
increasingly protect the interests of the old guard over
those of the vanguard? After all, new art always borrows
from old. Shakespeare's ''Hamlet'' was a remake; Picasso
created collages from torn-up newspapers; rappers rhyme
over bass lines lifted from funk songs. If that's the way
culture works, why does the law so often stand in the way?
Although Lessig is a proselytizer for what he calls an
''open access'' culture, he is not some foggy-headed
communist suggesting that artists cough up their creations
for free. ''Copyright is a critical part of the process of
creativity,'' he writes. ''A great deal of creativity would
not exist without the protections of the law.'' At the same
time, Lessig argues that those protections should be as
limited as possible. Patents and copyrights, he suggests,
should have short, renewable 5-year terms instead of the
current system of 90- to 150-year terms. And paying a
licensing fee should be all it takes to secure unfettered
access to another artist's work. Over all, Lessig argues,
the goal of law should be to push cultural products quickly
into a public-domain ''commons'' where they can be enjoyed
by all -- and, perhaps, transformed into something new.
Lessig is aware that he's not the first critic to claim
that America's copyright lawyers have become pinstriped
thought police. Much of the novelty of his book lies in his
effort to trace how the intellectual property virus has
spread, with tragic results, to the Internet -- a
communication network expressly created to allow the rapid
dissemination of new ideas. ''An environment designed to
enable the new is being transformed to protect the old,''
he concludes glumly.
To casual Web surfers, it may hardly feel that the Internet
has been trapped in an intellectual vise grip. A two-second
stop at Google still connects you to anything from medieval
manuscripts to hard-core porn. Mind-expanding novelties --
like ''bloggers,'' which allow users to create instant
public online diaries -- spring to life every other week.
But Lessig reveals that behind the scenes, an equal number
of cool ideas are slaughtered by copyright lawyers who use
Google to hunt down ''exploitation'' of copyrighted
material. Amateur fan sites for ''The Simpsons'' that post
unauthorized images from the show have received
cease-and-desist letters from Fox; in an even more
ridiculous example, a noncommercial Web page designed to
teach fellow guitarists the chord sequences to pop tunes
was shut down by EMI. (Clearly, the site was destined to
topple the sheet music industry.) Such lawyer-led
crackdowns, Lessig concludes, have made cyberspace less
free than the real world, where a musician can furtively
teach his buddy the chords to ''Free Bird'' without being
slapped with a lawsuit.
Lessig voices similar outrage over the legal decisions this
year that shut down Napster, the service that facilitated
trading of MP3 music files. The recording industry, Lessig
argues, successfully presented Napster to the courts as a
mere mechanism for thievery. But this argument papers over
the fact that Napster, which coalesced every user's private
music collection into a shared ''celestial jukebox,'' was
first and foremost a brilliant idea. Thanks to some clever
code written by a teenager, it became possible for almost
every recording ever made -- from Britney's latest hits to
jazz-era obscurities -- to become instantly accessible.
With mere keystrokes, Shawn Fanning made Borges's infinite
library a reality. Such a great idea, Lessig argues, should
be championed by an open society -- even if it threatens an
entrenched interest like the recording industry. Again,
Lessig doesn't want artists to get stiffed. In his view, it
would have been appropriate to require Napster to
compensate artists with one-time licensing fees, thus
creating a system of ''compensation without control.'' In
theory, artists could have been paid without compromising
the central innovation of a limitless music archive. What
happened instead, Lessig laments, is that judges sided
completely with the ''dinosaurs.''
Lessig's utopian musings about the evils of copyright will
surely be criticized by some as pie-in-the-sky thinking.
Certainly, a legal scholar could skewer many of the dubious
assertions Lessig makes while defending ''open access.''
(At one point, Lessig says that Napster, which came into
being in 1999, clearly didn't harm the record industry
because CD sales have ''tripled in the past 10 years.'') In
the end, ''The Future of Ideas'' is less valuable as legal
scholarship than as sweeping cultural criticism. It's a
manifesto that shakes you up, making you aware of how much
is lost when a culture turns ''ideas'' into ''intellectual
That said, a manifesto works best when it's short, rousing
and to the point. Unfortunately, a huge chunk of Lessig's
book is devoted to a tedious secondhand chronicle of how
the Internet's innovation-friendly architecture -- its
wiring, its fundamental code -- first came into being.
Hard-core techies will already know why things like
''packet switching'' are groovy; other readers, meanwhile,
will slog through dazed and confused. In these chapters,
Lessig seems to know he's putting his class to sleep.
Self-hating sentences abound: ''It may be interesting (at
least I hope you think this) to learn that the Internet has
this feature.'' Lessig's prose, too, is less than limpid.
''The commitment of a society open to innovation must be to
let the old die young,'' he writes. Let the old die young?
Somebody should do a fan edit of this book.
Then there's the fact that Lessig directs almost all of his
ire at fellow lawyers. Certainly, artists are equally to
blame for the drying up of America's cultural commons.
Bjork's share-and-share-alike philosophy is all too rare
these days. Indeed, it was the millionaire headbangers of
Metallica who helped lead the fight to shut down Napster.
And shouldn't George Lucas, the ultimate technogeek, be
held accountable by fans for shunning a digital novelty?
Copyrights may be enforced by lawyers -- but more and more,
it's artists who are the real phantom menace.
Daniel Zalewski is an editor at The New York Times
Copyright 2001 The New York Times Company
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