Once again, Lessig is trying to position himself both as a friend of artists and of copyright. He is a friend of neither.
This came up in a recent speech in which Lessig takes a swipe at “artist representatives” as distinguished from “artists” who engage in a “fight” (his word) over those artists’ copyright (in the above video at 3:15 or so). If you were unaware of Lessig’s contempt for CISAC and organizations like ASCAP, you would probably pass right over this reference. But it is a telling one, and it would be well for artists and their representatives to understand in context, especially artist representatives like WIPO and the U.S. Trade Representative.
Let’s be clear about why artist representatives often take the heat for the people they work for–Metallica, Gene Simmons, Helienne Lindvall, Lily Allen, Mark Helprin, and most recently Suzanne Vega and Jay Maisel. Or less famously, how were these artists treated by Grokster, Morpheus and Limewire to name just three? (Each of the three had some fairly direct connection to Lessig through the Electronic Frontier Foundation.)
How were these artists treated by the mob? Was this kind of treatment designed to make more artists come forward and express their views, or was this wilding and the failed attempts of these “innovators” (aka “defendants”) in litigation more aptly a technique of those wishing to suppress speech?
Also consider the the bizarre examples of Germans residents having their houses egged when they opted out of German Street View and Jay Maisel, who had his home defaced by unknown bad guys when he asserted his rights against Andy Baio of the shadowy Expert Labs.
Is it any wonder that people like Lessig who come from a non-union background would be immediately critical of artists who prefer to have the protection of their elected union officials advocating their views to Congress, or elected songwriter representatives taking the public heat for criticizing Lessig and his Creative Commons? Lessig couldn’t get elected dogcatcher, and he knows it–that’s why he dropped out of the election for a Congressional seat in–San Mateo. (Which is right next door to…Moffett Field, home base to the jets of a certain rich Silicon Valley company, not mentioning any names but the initials are Google.) Trust me: I really, really, really, really wish he would run for public office. I was as disappointed as anyone that he dropped out–for different reasons than some, but disappointed nonetheless.
As Songwriters Guild of America President Rick Carnes (the elected leader of the SGA) puts it so well in the Huffington Post:
“One of the most frequently proposed ways of giving away your song is to license [actually quitclaim] the use of your song under a Creative Commons license. But let us examine the Creative Commons [Corporation] a little more closely…
Lawrence Lessig, the lawyer who suffered a bitter loss at the Supreme Court on behalf of Eric Eldred in arguing that the Sonny Bono Copyright Term Extension Act was unlawful, has made a career out of opposing the scope and length of copyright. Exhibit A–Creative Commons [Corporation], is the organization he co-founded with…you guessed it, Eric Eldred, after losing [Eldred’s case] in the Supreme Court.
This is certainly their right, but realize that Creative Commons [Corporation] was born out of a defeated attempt to impose upon all creators Lessig’s and Eldred’s radical ideas about extreme limitations on copyright which were resoundingly rejected 7-2 by the U.S. Supreme Court [for ‘stupid’ reasons according to Lessig]. So while Lessig denies that he is “anti-copyright”, it seems to me that he equivocates on what the definition of copyright is. He’s not opposed to copyright, no, no. He just wants the copyright term to be 14 years instead of life plus 70. Sorry–when it’s my life that’s being added to the 70, I find someone who wants to cut the term of my copyright to 14 years to be advocating such a radical change that I consider him to be against copyright as the world defines it, therefore–anti-copyright.
It is this attempt to snatch victory from the jaws of defeat that spawned the Creative Commons license [actually a quitclaim]. The purpose of the license, I think fairly stated, is to promote the unpaid licensing of works of copyright. Fine so far. If a creator wants to give away their work, that is certainly their right.
But now Lessig tells us about the “hybrid economy” in his latest book “Remix”. And what might the “hybrid economy” be? “Where commercial entities leverage value from sharing economies.” Lessig cites Flickr, as an example to define this “hybrid economy.” So doesn’t this mean that people who give their copyrights away as part of Lessig’s ‘hybrid economy’–through “sharing licenses”– can have their works exploited to profit commercial entities without compensation? Maybe some of those same “commercial entities” that give millions of dollars to Creative Commons Corporation? Is that what is really going on here? After all, When Flickr was sold for 25 million dollars to Yahoo in 2005 how much of that money was shared with the people who ‘shared’ their content with Flickr?
The way I read the history, Creative Commons [Corporation] wasn’t founded by a bunch of songwriters getting together saying what we really need is a better way to give away our rights. It was founded by Lessig following the Supreme Court’s rejection of his ideas about limiting copyright for everyone else. Lessig proudly proclaims how he supported funding the Grokster litigation in favor of file share-style looting of music–another argument also unanimously rejected by the Supreme Court.”
Let’s be clear: Hybrid economist Google is one of Lessig’s biggest backers. Google gave Creative Commons $1.5 million and persons related to Google gave hundreds of thousands more. That is certainly the right of Google to give money to people who support their views and it is certainly the right of anyone to start an organization that attracts those contributions.
But if Lessig really is the friend of professional artists–something I simply do not believe–shouldn’t Lessig also be leading the charge to defend them against the mob? Some might say, the mob that he created?
Or if that’s too much to ask, then maybe the more immediate step Lessig could take would be to defend artists against wilding–something like an “ethical nudge” as it’s known around the Edmond J. Safra Research Lab at Harvard. Not just once in a footnote, but every time, defend them vocally and unequivocally. And not just the amateur artists he often equivocates with professional artists, but all artists. That would take real leadership, not throwing eggs in the dark of night or its online equivalent. (Of course, distinguishing between professional and amateur artists is not to disparage either–we all start out as amateurs, but as we evolve into pro-am and professional status, our needs change.)
Until he has himself stood up and taken the heat from the mob when they are attacking professional artists, then he should also understand that many believe he lacks the bona fides to attack their elected representatives for doing so. Ever since the Napster case, one of the PR strategies of “innovators” like Grokster, Morpheus and Limewire has been to savagely attack–or sound the dog whistle for others to attack–the artists involved. However much I loathe that PR strategy, you could kind of understand it in the Metallica case because one band–one–was suing. But after that, the genie was out of the bottle, and the “dark side” PR strategy really went to the very dark side and became directed against all professional artists–really any artist who asserted their Constitutional rights against the mob.
Maybe Lessig could win an election to the presidency of Creative Commons Corporation if the participating artists were given the right to vote in a supervised election. (That would, of course, require identifying these artists, and you know how invasive that can be.) I’m sure Google would be happy to pay for that election, too. Why doesn’t he do something like that? I wonder.
But it’s no wonder that the unelected Lessig takes shots at the representatives of professional artists. Just like Google, he likes his artists alone, broke and powerless, all nicely trussed up for processing by the hybrid economy.
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See also “Creative Commons: Because it sure seems to cost a lot of money to give things away for free”
“Creative Commons, the floating legal department for the global anti-copyright movement“
Music Technology Policy 