Lessig_Educause

toc =Lawrence Lessig's Educause 2009 Talk= On November 5, 2009, Lawrence Lessig gave a talk entitled [| It Is About Time: Getting Our Values Around Copyright Right] at the [|Educause 2009] Congress. The talk is available What follows is a transcript in progress of the audio recording, with occasional references to the video between brackets. It is added here as a general context for the quotes to be used in the Creative Commons chapter of the DICE handbook. The time codes, being those produced by [|Audacity], are expressed in seconds. The subtitles should eventually reflect those used by Lawrence Lessig in his slides. The timing of the video is ca 5 seconds later than that of the audio file (start of the actual talk in audio file: 0:00:41 - in video 0:00:46) =License= media type="custom" key="5065691" The author is Lawrence Lessig (except for mistakes in transcribing the talk, which are solely mine 1261245545)
 * as an audio recording: http://www-cdn.educause.edu/sites/default/files/e09-lessig-session.mp3 ( Running time: 60:23 minutes 27.64 MB)
 * as a video: http://blip.tv/file/2827842
 * for download as a [|.flv video file] (200 Mb) from Michael Paskevicius' [|Getting Our Values Around Copyright Right] blog post (Nov. 12, 2009)

=Transcript= =Podcast intro= 0.401439 37.219103 Announcer: Welcome to the Educause 2009 Annual Conference Podcast. (music) The Educause 2009 Annual Conference brought together the most influential IT decision-makers and resourcers (?) to improve the ability of higher education to achieve its mission. This podcast is sponserd by Juniper Networks and Qwest Communications International. We feature a session by Lawrence Lessig, director of the Edward J. Safra Foundation Center for Ethics, and professor of law at Harvard University. This session is entitled "It's About Time Getting our Values around Copyright Right". 37.240608 41.326681 music, applause =Lessig's Talk= =Observations= 41.491557 51.527525 I want to start by making observations on the way to an argument, on the way to saying something about what I think you need to do in a debate that you need to take more seriously. 52.086672 124.818762 Here are the observations. There are three.

1 History of ©
Numer 1: When anybody talks about copyright, we have to remember that there is an extraordinarily large elephant in the room. And the elephant I mean is this. In the past, in the history of culture across the world and in America, copyright had a tiny role. A tiny bit of the ordinary way in which people engaged with their culture was regulated by copyright. Here is Jessica Litman: "At the turn of the century - last century - US copyright law was technical, inconsistent, and difficult to understand, but it didn't apply to very many people or very many things. If one were an author, or publisher of books, maps, charts, paintings, sculpture, photographs or sheet music, a playwright or producer of plays, or a printer, the copyright law bore on one's business. But booksellers, piano-roll and phonograph record publishers, motion picture producers, musicians, scholars, members of Congress, and ordinary citizens - consumers - could go about their business without ever encountering a copyright problem." 125.248875 172.554125 Then things changed radically. The current contest is one where copyright now reaches across the spectrum of ways in which we engage in our culture. Here is Litman again: "Ninety years later, US copyight law is even more technical, inconsistent and difficult to understand. More importantly, it touches everyone and everything. Technology, heedless of law, has developed modes that insert multiple acts of reproduction and transmission - potentially actionable events under the copyright statute - into commonplace daily transactions. Most of us can no longer spend even an hour without colliding with copyright law". 174.073858 209.307272 Now, why was there that change? The critical thing to recognize - and an audience like this will get it - is that there is a technical reason for that change. A reason that ties the technology, the architecture of digital technology, to the architecture of copyright law. Because if copyright law, at its core, regulates something called copies, then in the analog world, the world Jessica Litman was speaking of at the turn of last century, many uses of culture were copyright-free. They didn't trigger copyright law, because no copy was made. 209.801902 298.964306 But in the digital world, very few uses are copyright-free, because in the digital world, of course, practically all uses of culture trigger copyright, because all uses produce a copy. So, think about physical book in real space. If these are all the uses of physical books in real space, an important set of those uses are technically unregulated by the law. So to read a book is not a fair use of a book, it's a free use of the book, because to read a book is not to produce a copy, To give someone a book is not a fair use of the book in America, it's a free use of the book, because to give someone a book is not to produce a copy. To sell a book, in the United States at least, is explicitly exempted from the regulation of copyright law, because to sell a book is not to produce a copy. To sleep on a book, in no jurisdiction around the world, is regulated by copyright law, because to sleep on a book is not to produce a copy. These unregulated uses of culture are then balanced by a set of important regulated uses, necessary to prduce the incentives artists and creators need to produce great new works. So, to publish a book requires permission of the copyright owner, because the thought is that monopoly was necessary to create incentives for at least some authors to produce great new works. And then, in the American tradition, there is a thin sliver of exceptions, called fair uses. Uses which otherwise would have been regulated by the law, but which the law says have to remain free, to assure that the right set of incentives for building on our culture are preserved. 299.423093 338.914625 Enter the Net, where every single use produces a copy. What that means is this balance between unregulated, regulated and fair uses radically changes, merely because the platform through which we get access to our culture has changed - changed radically. Not because anybody in this fine institution in Washington (picture of Congress) was thinking about it, but because the technology through which we get access to our culture has changed. That is the elphant in the room we have to keep in focus as we think about this issue.

4th Amendment
339.093839 429.611098 That's the first observation; here is the second. Think about this idea of a paradigm case. So: Constitution of the United States - 4th Amendment to the Constitution of the United States (http://www.law.cornell.edu/anncon/html/amdt4frag1_user.html#amdt4_hd4), this is the 4th Amendment, actually, it looks a little bit like that (changes font). The 4th Amendment protecting people against unreasonable searches and seizures. The paradigm case that that Amendment had in its head was something like this: the search warrant to permit authorities to enter into a building and search for evidence of a crime. Trespass was at the core was at the core of the protections that it granted. The framers of the 4th Amendment did not much think about a technology like wiretapping, because of course, when you wiretap, you don't necessarily have to trespass on anybody's property in order to effect the search that a wiretap makes possible. It's outside the scope of the paradigm case.

War Powers Clause
Or think about article 1, section 8, clause 11 (http://www.house.gov/house/Constitution/Constitution.html) - you might of course know that to be the War Powers clause that grants Congress the power to declare war. Lots of presidents have missed that first word in that sentence, Congress that has that power, but put this aside. The paradigm case that the framers were thinking about then was this man (picture of Usama bin Laden?), right? This kind of war, people physically gathering in order to engage in a confrontation between two states. They didn't think about the dynamic of war they would be presented when wars were simply terrorist acts by non-state actors. It wasn't within the scope of their paradigm case.

Copyright Clause
430.406807 461.726194 Finally think about this clause, article 1, section 8, clause 8: the Progress clause. "Congress shall have the power ... to promote the Progress of Science..., by securing for limited Times to Authors... the exclusive Right to their Writings - otherwise known as the Copyright clause. This clause too has come to have a paradigm case. The paradigm case, as this clause is now conceived, surrounds people like these people (picture of Metallica), or these people (picture of ?) or this person (picture of Britney Spears). Professionals - that's the conception.

Copyright law paradigm: money making
462.249498 581.620164 These professionals depend upon the exclusive right to control the copies and distribution of their work, as part of their business model. Their business model, focused on profit, using copyright as a means to securing that profit. That's what the professional is. And the assumption of copyright, according to this paradigm, is that if you don't secure enough money to these professionals, we'll get less creativity out of these professionals. That's the paradigm of this way of thinking about copyright. I have nothing against professionals - not that I ever make that much money out of my work, like this. But you know, we all aspire to that day when we might think of ourselves as professional in that way.

Other business models: amateurs
So it's nothing against professionals, but the point is to recognize that obviously, not all creators are the same in this sense, not all creators have the same business model. So, as with the paradigm of the 4th Amendment, or the paradigm Wars Power, copyright's paradigm ignores important case. So, for example, it ignores amateur creators - by which I don't mean amateurish creators. I mean people who create for the love of what they create, and not for the money. These are creators too: their creativity has been critical for culture in our past, much more of it in our past. Here is Aldous Huxley in 1927: "In the days before machinery, men and women who wanted to amuse themselves" - let's use an English-like accent to make it really effective, but I can't do that - "were compelled, in their humble way(s), to be artists. Now they sit still and permit professionals to entertain them by the aid of machinery. It is difficult to believe" - Huxley says - "that general artistic culture can flourish 582.157805 584.530595 in this atmosphere of passivity."

Souza
585.340640 705.800926 Well, about 20 years before him, this man, John Philip Souza, speaking at the United States Congress about this technology (picture of Edison's phonograph), said: "These talking machines are going to ruin the artistic development of music in this country. When I was a boy... in front of every house in the summer evenings, you would find the young people together, singing the songs of the day or the old songs. Today, you hear these infernal machines going night and day. (audience laughs) We will not have a vocal chord left" Sousa said. "The vocal chords will be eliminated by a process of evolution, as was the tail of man when he came from the ape." (audience laughs) Now here's a professional celebrating the critical importance that the amateur has to keeping culture alive and vibrant. This is his hero: young people together, singing the songs of the day and the old songs. And that's the picture: young people together that he wanted to make sure copyright law didn't squelch. These too are creators. They have their own ecology or business model of creativity. And in their business model, the exclusive rights make no sense. This business model of sharing and partaking and building upon and playing with others' creativity is excluding - and has excluding not at its core. Excluding others is not how that business model succeeds. Now, the point here is simply to recognize, all creativity happens within a particular ecology of creativity. Those ecologies of creativity have business models that are different. And the model of copyright appropriate to one can be a model that's harmful to another. 707.585894 793.056495 Second observation, here's the final.

3. Use critical sense
As a law professor, I'm a little surprised by the respect that non lawyers typically give the law. I mean, don't get me wrong: I'm not saying you shouldn't respect, especially law professors, and I'm not saying you shouldn't obey the law. But I think it's surprising, because lawyers, and especially law professors, display no similar respect for the law, right? Our view is constantly a view of skepticism. We constantly ask and demand of the law that it explain to us, how does this make sense? And we never presume that we happen to have a body of regulations that make sense. We always examine, and where it does make sense, then good for the law, and let's encourage people to follow it. But where it makes no sense, our perspective is that law needs to be changed. Now this is especially so in the context of copyright. Especially so because of the radical changes I described in observation number 1, of the scope and reach of this law. Meaning the law now is reaching in ways never intended, never planned by the framers of this law. So especially so, here, we should be skeptical.

Ecology of creativity
793.429260 870.885424 3, observations - here is the argument. How many think about the ecology of creativity in education and science. What does it look like? What is its business model? What is the ethos of these ecologies of creativity? For science we have clear statements of this ethos. Robert Merton famously described the scientific ethos as "communistic", as he said: "In the non technical and extended sense of common ownership of goods. The substantive findings of science are a product of social collaboration and are assigned to community. They constitute a common heritage in which the equity of the individual producer is severely limited. Property rights in science are whittled down to a bare minimum by the rationale of the scienfic ethic. The scientist's claim to "his" intellectual "property" is limited to that of recognition and esteem which, if the institution functions with a modicum of efficiency, is roughly commensurate with the significance of the increments brought to the common fund of knowledge. Eponymy -for example, the Copernican system or Boyle's law - is thus at once a mnemonic and a commemorative device."

Science
871.932032 923.982861 Now, Merton's point was not that you have to be a communist in order to be a scientist (audience laughs). His point instead is that the ecology, the business model of science doesn't depend upon the exclusive rights model of creativity, the ecology of creativity that we see modern copyright embrace. It is different from that. It is different from this picture (picture of Britney Spears) of creativity. It is closer to the kind of creativity Souza was romanticizing. Not that incentives for scientists are irrelevant, but the incentives are different. And that the quid pro quo of the exclusive rights system can actually be harmful to the ecology of knowledge that science tries to build.

1 Hybrid model
924.993626 1053.941472 Think about education. I don't think education is a science, in a sense. There are parts that are like science - sort of things: scholarship is like science, in the sense that we all write scholarly articles, and we want others to copy and distribute them as broadly as we can, and we don't get paid when people copy. Our business model is distribution, freely. Restrictive distribution is inconsistent with that business model. But there are other parts of education that are not quite the same as science. So textbook market, or scholarly books themselves - these are not quite what Souza was romanticizing, and certainly not quite what Britney Spears embodies here. They are not for free, but they are not made for the money. And which rights, or which system of rights for education makes sense is a much more difficult question. So, if we make the system of rights surrounding education more like Britney Spears' model, then collaboration will be hard. If we make it more like the John Philip Souza amateur model, incentives for extra type of work here will be weakened. So what we need is a hybrid of models in the context of educational creativity. Within a technical context, informed by the technical capacity of digital technologies, that once again makes sense. Step 1, step 2.

2 Skeptical examination
If that's so, if it's true that there are a diversity of business models for creativity, if there is a different ecology for creativity, depending upon the domains within which we are speaking and acting, then we should expect a certain resistence by scientists and educators to the current régime. We should see a resistance to imposing the Britney Spears' model of copyright upon the scientist or the educator. 1054.507788 1103.533489 Not that we should see a rejection of copyright - that's a mistake. But a resistance to the imperialistic approach - we should instead see an approach that skeptically examines copyright and demands proof that this model, as applied to the world that we know, makes sense. But if you would expect that, you would be very disappointed by in fact, what we see out there, in the scientific and educational communities. Rather than a resistence to the demands of one model of copyright, the past 20 years has increasingly seen enormous pressure from the top in all of these industries to embrace this model of copyright. 1104.307693 1131.010535 The field has been captured by an idea, a paradigm of foreign imports into our domains, of a creativity according to a model of hers (picture of Britney Spears) with little resistance from scientists and educators. Too little skepticism by the experts within science and education to the sense that this model ight have. Which leads to point 3.

3. Stop it!
1131.949615 1238.596107 Stop it! (audience laughs). Start to leave it (audience laughs and applauds). Stop listening, stop believing, stop deferring. Feel entitled to question this system. And I'm here to deliver to you this certificate of entitlement (audience laughs): "The bearer of this certificate, an educator, or one trained in the field of science, is hereby officially entitled to question - whether copyright law as currently crafted makes sense for education or science." You have this right, signed by a professor of Harvard University. So go with it. (audience laughs and applauds) Because the point is this deference to the people I produce for a living: lawyers, people who confuse the paradigm case with the universal case, is distructive of science and education. And you - not lawyers - need to take responsibility for that destruction. You have an obligation to protect science and education, and you need to do better in that act of protecting these important domains of culture.

4. Question paradigm case
So, how would you do that? Well, here is the question you need to ask: If there is a business model of science, or a business model of education that depends upon sharing, depends upon resources held in common that builds upon that common set of resource, how does this paradigm case help that business model?

Cost of academic journals
1239.370310 1348.475615 So, for example, think about academic journals. How does the paradigm Britney Spears' model help here? Well the answer - it differs, depending upon the context. You could start by asking, how does it hurt? For rich American universities, the model of academic journals, which of course, as you know, are extraordinarily expensive, the costs of which are going through the roof faster than inflation. That cost, it doesn't matter much to the rich American universities. We just suck it up. But for the rest of the universities, in America and around the world that don't consider themselves to be these rich universities, this is a significant cost. Indeed, around the world, even nominal cost to getting access to these journals is prohibitively blocking the spread of knowledge. Blocking the spread of knowledge globally, to people who could depend and build upon that knowledge, if only they had free and fair access to that knowledge. And put aside educators and universities.

For citizens
Think about citizens. These costs are destructive especially for citizens. I felt this quite directly, just about - I can tell you exactly: 8 weeks ago, when my third child was born, this extraodinary creature Samantha Tess. And three days after she was born, there was a severe fear that she had jaundice. And she fell into a severe state of lethargy, and the doctor said, "You got to take her to the hospital. So I've been doing some research about this, of course, being obsessive and fearful about this, as the doctor was increasingly concerned. And I'd gone to this great site, the American Family Physician, which permits you to download articles about scientific and medical issues for free. 1349.299998 1470.978937 I downloaded this article and printed it off and raced - I had it in my hand as I raced to the hospital with my 3-day old daughter, fearful of this extraordinarily destructive condition, which causes brain damage that she might - the doctor feared - have. And so as I'm sitting there, waiting for her to be seen, I'm reading this article and I come to Table 4 of the article, and this is what I find: "The rights holder did not grant rights to reproduce this item in electronic media." For the missing item, I should see the original print version of this publication. And I thought, this is astonishing. This is not Britney Spears! This is not the jewel, the crown jewel of the MGM film enterprise. This is a scientific journal, talking about a matter of health and science. And that they would already have built into their system a way to control whether I would have access to a graph - the critical that I need to see to have some confidence about where my daughter sat on this fearful scale - is extraordinary.

Costs v. benefits
Who would think of building and deploying such a system? Why would it make sense? Of course, there's plenty of important context where we need that kind of control. Britney's is one. There it might make sense. But here? What are the costs, here? They are significant costs, and what is the benefit? Do the benefits of this system of control exceed the cost. Is the proprietary model, here, one that makes sence? Now, I believe it made perfect sense in the past. The economies of production of physical journals in the past necessitated that type of control. If it was evil, it was a necessary evil. But the thing to remember about necessary evils - they are still evil. And if we can avoid them, we should avoid them

Open Access movement
1471.036285 1527.610468 And that's exactly, of course, what the Open Access movement in scholarly publishing is trying to do: to replicate the good of this old system: peer review of scholarship, while securing access across the world to anybody who wants access to this knowledge, to avoid the evil, to avoid the restrictions on access which make no sense to the underlying business model of scholarship, which is universal access to knowledge. So that's the mission of this organization on whose board I used to sit, Public Library of Science (picture: PLoS www.plos.org), there are of course many others who are trying to do this. But what you should be asking in response to this debate is whether the system makes sense, because I guarantee you, the people who are driving the debate right now are not asking that question. Indeed, we've seen the consequence of their unthinking work before.

1 Books
1527.933053 1569.381599 Let me give you an example. Think about 2 bits of culture, very important to our culture. Numbero 1, books, printed books. The funny thing about books is that, in an important sense, we have access to every single book published, ever. And in many ways, we have access to that for free: through libraries. Or almost free: through used books stores. There is an enormous market of creativity here. An ecology of creativity that preserves access to this extraordinarily important bit of our culture, unhindered by the costs of a copyright system.

2 Film
1570.155802 1690.694941 Compare that to film. Film is a compilation work, meaning, it's produced by having a bunch of different copyrighted works folded into it: the story, the images, the music. To use a compilation work, or to re-use a compilation work is contingent upon whether you can get the permissions of the copyright holders to the component parts. So for example, in the very beginning of CD-rom technology, this company, Starwave, decided they wanted to celebrate this man's (picture of Clint Eastwood) career. So they wanted to produce a CD-rom that would include clips, like 30-second clips, from every single film that Clint Eastwood ever made or appeared in. They had a team of lawyers who were assigned with the task of clearing the rights to include these 30-second clips on this CD-rom. It took those lawyers one year's worth of work, to go around and clear all the rights necessary to enable that simple compilation to be made accessible, to celebrate the work of Clint Eastwood.

Documentaries
Or think about a more important problem, in my view, the context of documentaries. This man, Charles Guggenheim, one of the most important documentarists from the 20th century. He made this extraordinary film of Kennedy two months after his assassination - Robert Kennedy - documenting his work, shown only at the 1968 Convention. His son, Davis Guggenheim, very famous for his "Inconvenient Truth" movie with Al Gore. But his daughter, Grace Guggenheim, a film-maker on her own, is the curator of Charles Guggenheim's work. For the past 20 years, Grace has been engaged in a project to move her father's work onto DVD platform, to make it accessible. It has taken 20 years of negotiations to make this possible.

Clearing permissions
1690.845481 1794.889790 Think: why would it take so long? Well, documentaries are often made up of snippets of other people's works. So you might have 60 seconds from CBS in your documentary - Civil Rights documentary - 60 seconds of some event in the Civil Rights movement. Film makers, when they made the documentaries, took the advice of their lawyers and the lawyers said "Well, we're going to need a contract or a license to permit this." Those licenses look something like this: "All rights that you have to use this work are going to be governed by this license", meaning you are not going to claim Fair Use, if you ever want to use this work in the future. And the license will do something like grant 5 years North American educational use permission, which means that after 5 years, you can't redistribute this work or move it to a different platform, display it in a different context, without going back getting permission from those original rights holders. This played out dramatically in the context of this extraodinary series, "Eyes on the Prize", which of course, was an account of the Civil Rights movement, as described by one film maker: "irtually the only audiovisual purveyor of the history of the Civil Rights Movement in America." They estimated it was going to cost up to 500'000 dollars to re-clear the rights necessary to make this accessible in DVD platform for future generations to get access to. Now what this means is, the vast majority of documentaries from the 20th century will literally disappear from our culture because they exist - nitrate-based stock (?) films - they will turn to dust long before anybody works out how to get around this enormous legal thicket of rights, necessary simply to clear access, 1794.889790 1799.241099 to make it possible to preserve and make these accessible to future generations

Two regimes of rights
1799.291279 1907.199436 Now, think about these two bits of culture. What is the difference between them? The difference is a régime of rights, the régime of rights under which each was created. When each was created, the régime was perfectly fine - when created - it didn't matter much. But the point to see is that the régimes are radically different, they are a disaster in the context of film, if we're thinking about preserving access and re-use to this bit of our culture in the future. Two regimes, and there was a choice made, which régime would govern each of these fields, made by people, made by lawyers, not thinking about how their choice would affect the environment for culture in the future.

In science
Now we are beginning to see the same kind of obliviousness in the context of science. This is an example our Science Commons project came across. This fantastic Allen Institute for Brain Science had done extraodinary brain mapping of all sorts of contents. This is the transgenic mouse study, which I wlll pretend to know something about, but I won't. We'll just say they had great brain scans here. People at Science Commons had the idea: "What if we just scraped all those brain scans and extracted the data, and dumped them into a google-map-like context, so that we could see them differently?" So they did this, and they had this extraordinary way of visualizing this, in ways that the Allen Brian Institute had never even thought of. So why couldn't they do this? Well, they couldn't do it legally, because in fact, if you look at the Allen Brain Institutes's site, the site is wrapped in a bunch of licenses that forbid any such reuse of their data. 1907.206604 1953.006459 You can't scrape data from their site. So they banned the ability to make this extraodinarily important insight accessible to how their data was made accessible. So the point is, documentary film culture is now moving to the scientist. And what we need to do is to act to avoid this thicket, at least where it's clear the thicket doesn't give us anything good.

What we need to do
And there is the argument: here is what I think we need to do. There are three things we might think about doing, in response to this problem.

1. Change the law?
Number 1, we might think about changing the law. I'm sorry to report, I think this is a hopeless strategy today (audience laughs) 1953.608617 2003.860141 I was tweeting with a bunch of you before this started, and I asked: "How many people here would be as enraged as most of us are, as we see what's coming down from the Obama administration around negotiations with this treaty - for this ACTA treaty, which is displaying that even this administration is captured by a vision of copyright regulations still stuck in the 1970's?" And they are increasing the war that we are waging on our kids in the name of a business model determined in the 1970's. So, if in the age of hope, it is this hopeless to think about changing the law, I think we need to move beyond the space of changing the law, right now, and think about what else we could be doing.

2. Changing norms and practices
2003.982006 2100.162418 So, the second thing we could be doing is thinking about how to change norms, our norms, our practices.

Creative Commons
[see video excerpt ] And that, of course, was the objective of a project a bunch of us launched about 7 years ago,the Creative Commons project. Creative commons project has as its ideal identifying simple ways, giving authors simple ways to mark their content with the freedoms they intended their content to carry. So rather than the All Rights model of Britney Spears, this is a kind of Some Rights Reserved model, where you signal clearly: "The freedoms you have with my creative work, and the restrictions that I continue to insist upon." So the freedoms could be the freedom to share the work, to remix the work, or both. And the restrictions you are allowed to impose - you can say: "You can do it for non commercial purposes", or you can say: "You can only do it if you share alike", meaning you give others the freedom that you inherited, or you can post both restrictions. You add these freedoms and restrictions together and you get a bunch of licenses: there are 6 licenses, they all come in three layers. So one of the layers here is a human readable commons deed: a deed that expresses, in terms everybody should understand, the freedoms and restrictions associated with that creative work. Second and very different, is a lawyer-readable license - (audience laughs) - a billion-page document, written by the very best lawyers we could find, to make enforceable the freedoms associated with this content. And third, and ultimately in my view, most important: a machine-readable expression of the freedoms that are associated with this content, 2100.384643 2155.338734 So that machines can begin to identify the freedoms that run with particular bits of content and make it easier for education - educators and scientists and artists to gather content on the basis of the freedoms that it carries. And so Yahoo and Google both now have built into their search engines the ability to filter content on the basis of these freedoms.

Enabling creativity
When you enable this kind of a collage, you get a certain kind of creativity that is, in my view, the celebration, the very best kind of celebration, of a kind of the kind of Romantic vision that Souza was talking about. This is still my favorite example of that: this is a song written by an artist, Colin Mutchler, he called it "My Life" - guitar track he uploaded to a free site that allowed other people to download it under a Creative Commons license. 17-year old violist named Cora Beth downloaded it, added the violin track you here on top here 2136.299070 2152.915765 (music: Colin Muchler's "My Life") 2152.937271 2191.059610 (music: Colin Mutchler and Cora Beth's "My Life Changed") 2158.958851 2261.003136 renamed the song: "My Life Changed", and then re-uploaded it for other people to do with it as they want, there has been a whole bunch of remixes of these. Some of them are great, some are a little bit embarassing, like the Japanese one, "My Life Changed", absolutely rich, you know, showing off (?). But the critical point to recognize is that these creators could create, consistent with copyright law, without any lawyer standing between them. And that's the objective here: to enable people to respect the underlying rights which copyright enables them and grants them, without requiring the high costs of intervention that lawyers always will impose on the respect of those rights.

Expansion of CC
So we launched this in 2002, and since that time, there has been an explosion of licenses, creative objects out there in the world marked with these license. An extraordinary range, over 100 million images now at Flickr, Radiohead released a song, #1 song on Amazon that was licensed under a Creative Commons license, Girl Talk is a big supporter here, and Nine Inch Nails released an album under a Creative Commons license: within the first week, they made 1.6 million dollars on free music that was available for people to dowload for free. Because they had recognized the importance of bringing the audience upstage, and they were rewarded for that. Al Jazeera, amazingly, makes all of their video now, of the Middle-East, available under a Creative Commons license, so anybody can incorporate it into news shows and commentary around the world. The White House has put the White House content under a Creative Commons license. 2261.010304 2276.315155 And of course, last year, Wikipedia re-licensed the whole of Wikipedia under a Creative Commons license, to build this infrastructure of interoperable free culture that speaks to a different business model of creativity.

Science Commons
[video excerpt: http://www.youtube.com/watch?v=8c8anxJMuRU] 2276.931650 2308.480431 Then in 2005, we launched the Science Commons project, which wanted to focus the same kind of insight in the context of science. How do we lower the transaction cost for scientists to share their work? How do we build an infrastructure to enable that voluntary sharing. So we wanted to be part of the Open Access movement in scholarship, and an extraordinary number of journals now use our licenses, a thousand journals do make their content freely available under the terms of Open Access licenses.

Open Data
2308.932050 2343.541801 We then have open data project, which is more complicated, because data isn't technically, in the United States, protected by copyright, so we wanted to build a legal infrastructure, to enable [sic in the audio, but probable lapsus: the slide says "eliminate" - 1262344128] any of the complexities around sharing data - these unnecessary legal restrictions that creators of data believe surround their data. And that infrastructure was a protocol, we called it CC 0. Basically, it's a simple way for creators or scientists to waive any possible right or claim they might have to this underlying data. 2343.756857 2362.681824 And then to complement that legal infrastructure with a technical infrastructure to enable sharing - and we've been one of the most important forces behind the RDFa standard which, when it matures and gets embedded in the infrastructure around us, will enable a much more intelligent way for these entities to share and make knowledge accessible.

Material Transfer Agreement
2362.918387 2390.925905 And then we have extended out of the virtual world into the physical world, into the open material space, to enable stuff to be more easily shared. So we have this Material Transfer Agreement, which is like a Creative Commons license, that enables anybody in the same 3-layer to facilitate the sharing of the stuff, the mice or whatever else you're producing, without the enormous cost that are typically layered on top, of lawyers insisting upon controll of everything in the future.

Ex: Personal Genome
2391.062107 2489.063330 The aim of this project here, is simply to simplify voluntary sharing here. And one of the most dramatic examples of this is this launch of the Personal Genome project. I don't know if you know, with this project we are going to get volunteers, put them through this enormously rigorous test, to make sure they understand what they are volunteering for. You literally have to get a perfect score on the online exam that they give you. If you don't get a perfect score, you can't be considered a volunteer. These volunteers volunteer to make their gene sequence information completely available for anybody to do anything with it that they want. Now, not everybody would want to opt into this, but certain important leaders in science have done this, and more than a thousand volunteers have been cleared and not yet processed here. But what will be made available is 3 bits of free stuff things. #1: complete gene sequence for these people. #2: medical information for these people. They will give interviews that will report the whole of their medical history in a way that can be used by science. And 3: stem cells; real stem cells that will be made accessible for anybody to get access to accordint to a protocol. And all 3 of these layers are now made accessible under a CC-like infratructure. So the gene sequence is CC 0, no restriction on it at all; medical information CC 0 no restriction on it at all; the stem cells are governed by a Material Transfer Agreement that facilitates the simple sharing of this information, in a way that will explode information around this gene sequence information.

Open Learn
2489.593803 2524.411442 Finally, in 2007, we launched CC learn, the objective of which was to coral or herd the cats (?) of the Open Education resources movement, to hepl build an infrastructure of interoperable free educational resources, so that the ideal of Open Education, which so many in this room, I know, have taken an enormous role in helping to push, can become a reality, can become a part of education around the world, as people can take valuable resources and do stuff with it.

Appeal to coders
2524.583487 2590.197209 Now, I spent this long time telling you about this enterprise, Creative Commons, because you - you geeks especially - have a critical role to play here. What you need to become is a kind of radical, militant activists in spreading the infrastructure necessary for this infrastructure of freedom to succeed. This is code for sanity. Tha's what the Creative Commons envisions, and you need to participate in building that code. Because of course, the educators or scientists have more important things to do than to worry about exactly how the RDFa is being embedded inside the infrastructure that marks their content freely, so others can share it. You need to build that, so that it's simple for them to play by the rules of the different ecology that is the norms or practices that we should be aspiring to. OK, that's changing norms and practices.

3. Change fate
2590.591480 2667.696385 Finally, we talk about ways we might try to change fate. As impossible as this might sound, and you know, I'm a little of a radical optimist about this, we have to learn from our past. I know it sounds impossible, but let's try. here. We have to learn to learn from our past, And the past I want you to think about is the contrast between books and films.

Google Book Search
And which if you think about them in a particular context, this big debate is growing now around Google: what used to be called the Google Print project, now called the Google Book Search project. A project to googlize books. The books, the 80 million books that they would be googlizing, come to them in three categories. #1: 9% of those books are books that are in copyright and in print: so you know who the publisher is, and the work is under copyright. 16% of those books are books that are in the public domain. the 75% of those books are books that are presumptively under copyright, but no longer in print, which practically means there's no one to ask for permission to do with those works what you might want to do with those works. 2668.226857 2704.944162 So Google looked at this triad of categories, and said: "OK, what we're going to do first is scan all of them. And then we'll grant access to the underlying works differentially. So, three different categories.#1, the public domain books, we'll grant full access. So you can go and download a PDF version - it's a little bit hacked up, but you know, whatever. The PDF version of a public domain work, you can store it on your own computer or share it with your friends. This is guaranteeing access to these works in electronic form for free. 2706.471062 2727.955202 With respect of works that are presumptively under copyright, Google would grant at least snippet access. And this is what that looks like: literally, snippets from the book that are a couple of words around the words that you might have searched on. So that you know that the book might have something to do with a particular thing you are searching for. Then it gives you links, either to buy a used book or to get the book at your library. 2729.489271 2752.364108 And third, with respect of books that are in copyright and where there's a publisher to talk to, Google would give a s much permission as the publishers or authors would allow. So here is an example of a book like that, where you can actually search and see a couple of pages around the search term, because the author or publisher has given permission for that more extensive access.

AAP AG's lawsuit
2752.865907 2860.143232 Now, not surprisingly, not everybody loves Google or the Google Book Search project. And, of course, in the United States, when you don't love someone, what you typically do is sue them. So that's what happened with (audience laughs) the Association of American Publishers and the Authors' Guild, who banded together to file this lawsuit against Google, saying that Google was engaged in massive copyright infringement. And their claim was, before Google could scan the 80 million books, they had to clear permissions that would be required by the copyright owners, if copyrights still survived in any of these 80 million books. So what would that mean, precisely? What would it mean to the practical business of running a project like the Google Book Search project? Well, the public domain books - assuming that you could figure out what is in the public domain or not relatively easily - wouldn't matter much, because there's no rights holders to talk to. 16% could be included in this library without any problem. The in-print and in copyright books also not a problem. Indeed, everyone of those publishers had already entered into agreements with Google, to permit Google to grant significant access beyond just snippet access, before Google launched this project. But the thing to recognize is that if the rule of the Association of American Publishers or the Authros' Guild were adopted as law, 75% of the books in our library would literarily disappear from this index, because there is no way clear rights here, practically, because there is no simple, obvious person to ask, because the copyright system is an enormously inefficient property system that doesn't even tell us, practically, who owns what.

GBS settlement
2860.759727 2949.276961 So, this project launched and then the lawsuit filed against it was then purportedly settled by an agreement last October (slide: 10/28/08). The agreement says that basically 20% of all of the books in that little category would be available freely to people as they want across the Google Book Search Library. Freely in the sense that Google was going to pay for that right, but at least the user could get access to it for free. And then you would have the right to purchase the full book. And that money the user would pay for would then go into a pool that would be held by some new corporation that would give it out to those orphaned authors, assuming they could be found some day in the future. What this settlement left open, importantly, was whether what Google did originally should be considered Fair Use. Google, rightly in my view, insisted that their original plan was protcted by Fair Use, and they did not give up that claim in the settlement, but of course, the Authors' Guild disagrees with that. So, whether it's fair use to make this scan or snippets, so that was still held open, but now the project would now open 20% of these books up, and obviously 20% is more than snippets.

Analysis of settlement
Now, in my view there is an important progress in this settlement: 20% of this gaping hole is better thannone. So we are making some progress here. It's more than Fair Use, and obviously more access is better. But I think the thing to recognize is the way that this is good only statically. 2949.699905 3072.683519 And the fear I have is the dynamic consequence of establishing a structure like this, with the enormously large players of a relatively large oligopoly of rights holders on one side, and a very powerful company like Google on the other. Because the question we need to ask is, what ecology will this structure produce for access in our culture? The ecology of access today, of course, os of the access of a library, which is free access to the whole book. Not 20% of the book and the right to buy access to something more. The settlement establishes a workd that is radically different. Indeed, this 20% is a simplification. If you read the 140-page settlement, you'll see that there is in fact a radically complex formula, depending on thekind of work and the kind of copyright involved in the work, for determining how much you get access to for free. And my fear - a fear that was only exacerbated as I tried to learn about the disease I thought my daughter had - I didn't tell you the punch line: she's fine, she didn't have the disease (audience applauds) - my fear is that this structure will push us in the direction of doing to books what we did to documentary films. It's a future not of a digital library, it's a future of a digital bookstore. Indeed, worse than a digital bookstore, because this is a digital bookstore with all the freedom of a library of documentaries, which of course, we understand now to be essentially none, because of the enormous complexity built in by this obsessive permission culture, produced by lawyers and oligopolies, oblivious to the costs that their system will produce on the future of access to knowledge and culture. We need to wake them up to these costs.

Ecology of access
3073.808981 3161.659540 Now there are extremely hard questions here. Not just questions of competition and privacy that get raised by the Google Book Search settlement, but questions of this ecology of access that this settlement begins to cement. We need to wake people up to the fact that there is a need to re-strike a balance in copyright, between how we preserve access to our culture, without destroying the incentives that certain parts of that culture need to produce great new works, how we protect access to the past, without protecting the past against the future. And we need to begin this conversation with humility: none of us know precisely how this should be done. We in this community love to focus on their limits, the limits of private companies, the limits of the government, the limits of oligopolies like BMI (Broadcast Music, Inc.), ASCAP (American Society of Composers, Authors and Publishers) or rights holders. But then, am I the only academic who's also fearful of the limits of the academics in understanding what this future would be like? Am I the only one terrified about a set of rules written by us, that would define what the future would be like? I think we need to recognize both sides, here, have limits, see this settlement as an important experiment, but recognize an extremely important insight given to us by Peter Drucker as he wrote: "There is nothing so useless as doing efficiently that which should not be done at all. 3160.519741 3162.233024 (audience laughs) 3163.552037 3170.935642 And as we think about a future of knowledge as documentary films, we have to ask whether that should be done at all.

Final plea
3171.695508 3271.209295 OK. One more plea - the end here (?) - So, I was invited to come to give a talk at this place: this is the American Association of the Bar of the City of New York. Not many lawyers were going to come to my talk, but anyway, it was at the Bar of the City of New York. And I was part of a panel as well, and I was to give a talk before the panel. But the panel was held in this room: you see this room, this beautiful old room in the center of New York, these beautiful velvet carpets and red - velvet curtains and red carpet. And as I looked around this room, the room filled quickly, was packed by the time this started, filled with artists and creators, and a couple of lawyers.

Panel on Fair Use
And the people had all come together because they were eager to learn how it was that they could create using digital technologies, consistant with the law of Fair Use. So the panel opened up, and of course, as you might know, the law of Fair Use, basically, in America has four factors, The Supreme Court has said: "We are not going to give you any formula. Judges have to weigh each of the four factors in each case. So you have to understand the four factors and then have some deep understanding about they get weighed together. And the lawyers who were organizing this event decided that the simple, obvious thing to do was to give each of four lawyers 15 minutes to describe each of those four factors, with the plan being that, 60 minutes later, the audience would understand the law of Fair Use. (audience laughs). But as I sat there and looked out at the audience, the reactions themselves were something more like this (picture of baffled young person - audience laughs).

Soviet regimes...
3272.549814 3389.397150 And as I saw that reaction and I saw the room, I began to daydream a little bit, about, you know, what exactly this room reminded me of. And, you know, a fact about my early history when I was a kid, just at college, I spent some time traveling in Eastern Europe and Soviet Union, and I began to reckon, is that's what this room has reminded me of (audience laughs). And as I sat there listening to those lawyers, reflecting back on my time traveling in spaces like this, when exactly, spaces were occupied by the Communist Party, I began to wonder, when was it, in the history of the Soviet system, that you could have convinced members of the Politburo that the system had failed? Right, now: 76 was way too early, it was chugging along, you know, OK in '76. '89 is too late: if they didn't get it by '89, they were never going to get it. So when was it, betweem '76 and '89, that you could have convinced them that the system was failing? And more importantly, what could you have said to these members of the Politburo to convince them that this romantic ideal of their youth had crashed and burned, and to continue with their system was to betray a certain kind of insanity?

...<-> Lawyers
Because as I listened to lawyers - well I think of them as us, us lawyers from the United States - insist: "Nothing has changed.The same rules should apply. It's the pirates who are the deviants!" Actually, they are pretty deviant, but - (audience laughs) - I begin to recognize that it is we who are insane here. The existing system of copyright could never work in the digital age. Either we will force our kids to stop creating, or they will force on us a revolution. Both options, in my view, are just not acceptable.

© abolitionist movement
3389.619375 3455.333457 What all of us need to recognize is that there is a growing copyright abolitionist movement out there. People who believe that copyright was a good idea for a time long gone and we just need to eliminate it and move on with a world where there is no copyright. I am against abolitionism. I believe copyright is an essential part of the cultural industries and will be essential in the digital age, even if - I believe - it needs to be radically changed in all sorts of important ways, and it doesn't apply the same in science and in education. But I believe it is essential to a diverse and rich, in all senses of that word, culture. So in that sense I feel a lot like Gorbachev, not so much like Yeltsin. I'm kind of an old Communist, just trying to preserve the system in the context of two extremes. I'm against these extremes, both of which, I think, would destroy the system. Now, you might look at this and say: "You know, we don't have anything invested in this system, we don't care much about copyright, if it dies, who cares? - whatever".

© war against kids
3455.871099 3570.682568 So, let me make one final plea, to bring you into this battle. You all know, we are in the middle of a war. I don't mean - actually, we are in the middle of many wars - I mean actually one war here, the copyright war. War that the late Jack Valenti, my friend - extraodinary man - used to refer to as his own "terrorist war"? - where apparently, the terrorists in this war are our children. (audience laughs). So we organize and wage war against these terrorists. We talk about this as a war that needs to be waged against these pirates. And the thing that we need to recognize as educators, as scientists, as parents, as people who understand the potential and uses of this technology, is: we can't kill this technology, we can only criminalize it. We're not going to stop our kids from creating the way they create, ways that we couldn't even begin to imagine creating, at least when I was growing up. We can only drive that creativity underground. We can't make our kids passive, the way that, again, I was passive growing up, the way Souza feared. We can only make them "pirates". And the question we, as a culture, need to ask is: Is that any good? Our kids live in this age of prohibitions, in all sorts of contexts of their life. They live life against the law. We tell them they live life against the law and they recognize their behavior is against the law. That recognition is extraordinarily corrosive, extraordinarily corruptive of the rule of law in a democracy.

Stop this insanity
3571.076838 3590.998233 You, each of you, all of us, have let this insanity happen. You, each of you, all of us, could, if we actually stood up and did something about it, make it stop. Thank you very much. 3591.206121 3597.822691 (applause) =Podcast outro= 3596.482173 3618.145526 Announcer: Lawrence Lessig, director of the Edward J. Safra Foundation Center for Ethics, and professor of law at Harvard University. This Educause 2009 Annual Conference podcast is sponsored by Juniper Networks and Qwest Communications International. Thanks for listening. (music)

(Intertitles and hence TOC might still change 1261245545)