May 01, 2004
China Digital Conference Day II: Larry Lessig Keynote

Xiao Qiang (our host and organizer of the conference): The conference is about China, but not static country, but a dynamic, changing, interconnected country. With that, introduced Larry Lessig (the following are notes from his talk).

Larry Lessig: China's Digital Future (title). 15 years ago he bought his first ticket to China, and was graduating from Law School and wanted to celebrate. His plane was to land on June 3rd, 1989. But they were diverted to the Phillipines, and eventually he made his way to Beijing. It was an astonishing way to recognize Beijing compared to the picutures on the news the previous two months. On a train from Beijing to Shanghi, on a train sitting with a professor who spoke English, and chatted about what all this meant. Lessig was proud of his heritage, traditions, but wanted insight about China. And so wanted the core ideal. But that is also a blindness. The issue of the internet upon thinking about it, may be a blindness, a core, an insight to realize.

Daguerrotype led to Kodak, which led to an expanding market. Question in the courts over whether one needed permission to take and then publish the photo. The answer was no. You were free to capture and share images, and then at that point the explosion of growth in photography took off. But if the courts decided to not make it free, things would have been different. It would have been:


So is there an insight here for China? (Onscreen:) Insight: China.

...."to steal a book is an elegant offense" -- William P. Alford. Recognizing the complexity of intellectual property. But there is blindness in China too. Cybercafes where monitoring comes up. Surveillance. Access to the internet and control of it shut it down. Cybercafes in the US are the opposite. Very strong freedom for cafes to be free of surveillance in cafes in CA. But there is blindness in the US, too. Blindness about Intellectual Property. The question is the freedom in the context of IP. The stakes of course are different. And don't mean to equate the context and weight in both situations. But do want to look at the parallel. To find what we can teach each other, find the insights. An opportunity to recognize the blindness in each other's cultures, and respectfully tell each other. In the same way that the men on the train to Shanghi thought each needed to know certain things before they could understand each other's cutlures.

Radical change. Dimensions: term, scope, force, reach.

Term: 14 years, x2, but now it's 70 years after death, and for Irving Berlin, his most famous work gets 140 years. Before, the renewal was not done half the time, so the average length of a term was >33 years. But now, the maximum is the average.

Scope: only copyright granted if you registered, but now, everything is automatically copyrighted. Which means that in the beginning of the US, only about 1% was copyrighted, so that 99% was in the public domain. So after 1976, everything gets the benefit of copyright, and the formalities have been eliminated, so that was 25% regulated before 76, is now 100% regulated. Before the Internet, courts and humans regulated. Now: the rule is regulated by technology under-which access is granted. Code. Law. Code is law.

Example, Middlemarch is a public domain book, but the Adobe EBook reader does not reflect this. You can only copy 10 pages every 10 days, print 10 pages every ten days, and read aloud. It's machine readable controls that are enforced by the system. This site gave info on how to hack your Aibo to "teach your Aibo jazz." Not a crime to dance in the US. Not a crime to teach your dog to dance. But when this Aibo site gave instructures, they were C&D'd by Sony for sharing the hack so that you could have your dog dance. The law protecting the code, protecting access to the code, says the maker has final say, not the owner of the Aibo.

Reach: Used to be that fair use meant that you had free use for certain ordinary uses. But now all those uses can be regulated by machines.

Dimenions: term, scope, force, reach.

Never has the law granted this much power to the few to control "creativity." Very different than when Walt Disney could be creative without asking his lawyers first. The internet squares this ability to create that Disney knew.

Gave a couple of examples including the Grey Album and the Read My Lips video of Tony Blair and George Bush which the audience totally cracked up over. Obviously they'd never seen it. A lot of clapping and giggling.

So when people ask him why he does copyright law, it's because this regulation of copyright law, when tied to digital technology ,says something about how culture and democracy could develop. And yet all the examples are illegal art. And yet none could be sustained. And each sought permission to use the materials. And in each case, the lawyers responded that "it's not funny." But the system of permission forces creators to be disaddents or comply. But if they comply, they can say much less.

So here's the core. The blindness. We see this system regulating potential. Changing the freedom to speak. To speak differently. Not broadcast democracy, or a kind of Soviet system, but as a bottom up system. Not a NYTimes democracy, but a blog democracy. A p2p democracy. The ideals of free culture. That is lost. Because the law has said that without seeking permission first, the answer is no.

Jesse Jordan, at RPI, decided he would make something to allow people to search files on the RPI network. So he tinkered with the technology to enable people to search better and produced a 1 million file network, 2/3 of which had nothing to do with music. But he got C&D'd by the RIAA, and because copyright infringement is $150k per infringement, he had $15,000,000 of exposure. So the RIAA took his $12k in student savings for making a search engine. And in talking with his lawyer-uncle who said he would help, but it would probably cost $250k. So the choice is to send the $12k or spend $250k.

In 1987, the J. M. Barrie estate had "the Little White Bird" enter the public domain. In 1928, Barrie also produced "the Boy that Would Not Grow Up" which will enter the public domain in 2023. This was the basis of Peter Pan. In 2002 Emily Somma wrote "After the Rain" about how people should want to grow up. But she was informed that she would have to wait until ALL the Peter Pan stuff is in the public domain before she can publish her work.

Another example: a film maker wants to publish his documentary with a Meet the Press clip but NBC told him it "does not make the President look good" so he was denied the clip, though the interview was about matters of national importance. So he is not using it.

And there are the Diebold memos and the C&Ds using the DMCA to force the take down of the memos at Swarthmore (and elsewhere including Berkeley).

Copyright is increasingly a feature that stifles. But this is a conference about China and the internet. Where there is a different kind of control. But we can say the same from a different perspective. There is the Yahoo France case, where the French court told Yahoo to take Nazi content down for France. In the US, there was outrage that France was regulating the internet and violating the first amendment. And yet a couple of years before, there was the iCraveTV case in the US where TV was available on the itnernet. In Canada, there was a law that allowed the rebroadcast of TV, so it was made available, but the US court said that Canada had to block US users, and the court asked how well the blocking would have and the answer was 98%. That wasn't good enough, so the US court shut down the Canadian site. So the nature of the case was different, and the content was differet, but the blindness was the same. The core blindness is the same.

The stuff is different, but teh ideal is the same: freedom. Not anarchy. Not a world where standards are not obeyed. But think about the freedom and the prosperity it produced. Not a world without intellectual property. But a world where there are limits over the control. And if we can hear others, and they can hear us, then there is a potential to understand the Kodak moment. Where the moment where freedom that comes from recognizing that blindness is in in both places.

QandA: LL: this is a message for right wing conservatives about control. People have to begin to recognize this is a political issue. When he proposed a reduction in copyright, the MPAA said that it was too much of a burden on poor copyright owners to ask them, 50 years after the origin of the work, to pay $1 to reregister.

Orvill Schell: reflect on china, how important is it for a society to have a first amendment, something to lay out free speech, before it can have it?

LEssig: train, need foundational docs. prof: docs are words, need a culture that recognizes these values first. I think it's an insanely complicated thing to figure this out. Docs have never been used here to lay out culture. Though amendments, 13th, 14th and 15th were the first constitutional laws to attempt make a change in the culture and were totaly unsuccesfull for the frist 100 years. But then when it became a social and culture movement, the change started happening. So docs might be a useful step. But it requires more than just documents to really change.

Q; didn't explain Creative Commons, and we are working on CC in China, and how this will work?
A: CC started 2 years ago, so that creators could mark content, with a some rights reserved model, with human readable, lawyer readable, and machine readable expression, that for ex, Yahoo can now read, for say, photos. Got a million CC licenses out in the first year, but now Yahoo says it's 3 million, in a year and a half. To port the legal code into different systems, and there are more than 50 countries to date, Japan, Brazil, etc., and another 25 coming, it requires making one for each system. But these the code and CC licenses rest on copyright law in each country. Working on this in China.

Q from Jang: always talk about copyright in China, but want to hear about the challenges of piracy, for video, software, my observation is that the most important thing is to cut a balance. In China it's already outlawed. But it's a "lower circus of globalization" where migrant workers who can't find jobs and then they engage in this illegal activity.

A: In the spirit of recognizing the common blindenss. We in the US were born a pirate nation. We didn't protect foreign copyrights until 1889. This was a mistake. Every nation needs to respect foreign IP. But there is a difference between "piracy" and "piracy" which is one, reselling, verses two, creatively reusing as in the examples above.

A lawyer, who said to LL, do you realize that there is a kid with 400k songs on his computer? And LL said, do you really think that that kid would actually buy that or listen to that much music? So what is reasonable? Are you really losing those sales?

You can criticize piracy, and you should, but it's also about ideas of free trade, especially with respect to developing nations. There is something about making a balance here between them.

Posted by Mary Hodder at May 01, 2004 11:23 AM | TrackBack
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