On April 17, the district court of Stockholm issued its verdict in the copyright infringement case of the torrent tracking Web site The Pirate Bay, whose managers and another associate were accused of facilitating the illegal downloading of music, movie and video-game files. The four defendants were found guilty of accessory to crime against copyright law and sentenced to one year in prison each and a fine of 30 million kronor (equivalent to about ¥360 million on that date).
The case is only the latest incident in what Stanford University law professor and copyright activist Lawrence Lessig describes as the “copyright wars,” the entertainment industry’s assault on digital file sharing, which has included lawsuits against university students and grandmothers in addition to companies such as The Pirate Bay and Napster. The author of numerous books outlining the Internet’s relationship with law, culture and commerce, Lessig is among a vanguard of intellectuals considering the societal implications of what was once mainly a technical issue.
Speaking with The Japan Times in Tokyo on May 1, prior to giving a presentation on the ideas behind his latest book, “Remix: Making Art and Commerce Thrive in the Hybrid Economy,” as part of the Mori Art Museum’s MAM Art Course lecture series, he was not surprised by the Pirate Bay decision, commenting that “it certainly flows from the law’s conception of how to regulate content.”
However, Lessig sees the need for copyright law to be updated for the 21st century and warns that the current system is criminalizing an entire generation of children who are growing up with the Internet. He said: “So much of the focus of copyright law for the last 10 years has been to perfect the basic model from the 18th century, which is to control the production of copies. That was a sensible proxy for regulation in the 19th and 20th centuries because the number of instances in which you made a copy were relatively few . . . (But on the Internet, where copying is built into the architecture of the digital network) you can’t go 10 minutes without triggering the application of copyright law. So it is the first time in history where it’s taken on this extraordinary significance in people’s lives.”
Elaborating on the stakes at play in the legal standoff over copyright regulation, he continued, “The legal establishment is in denial about this, saying, ‘Well, you just have to make sure the law’s running efficiently,’ even though it’s regulating wildly beyond what anybody ever expected it would regulate. I think the key is to get people to recognize the radical change and then avoid what to many kids seems the logical consequence of this, which is to scrap copyright law.”
In “Remix,” Lessig makes a convincing argument that the Internet’s ethos of sharing and collaboration is part of an important cultural watershed. He describes this shift in computer terms as a move from 20th century Read/Only consumer culture to a Read/Write interactive culture. As video bloggers remix clips from their favorite anime shows with homemade soundtracks that they then upload to video-sharing sites such as YouTube, they create new intellectual properties — and even sophisticated social and political commentaries — that do not necessarily impinge upon a trademark’s commercial value. Indeed, Lessig suggests that such fan appropriations can increase a trademarked property’s market appeal. In other cases, participatory projects such as the online reference Wikipedia create rich informational resources.
A pragmatist who views copyright as a necessary incentive to creative output and experimentation, Lessig in 2001 founded the nonprofit corporation Creative Commons to promote an alternative licensing regime for the Internet that allows users to specify the types of permissions they wish to attach to their works.
Lessig’s own books are published under CC licenses and are available for free in PDF format, with the CC-licensed version of “Remix” launching on the Web site of its publisher, Bloomsbury Academic, the same day as the Mori presentation. Explaining the benefits of such licensing, Lessig said, “Creative Commons is an enormous simplifier of the problem of copyright regulation in a whole host of contexts. Under the CC-noncommercial license, all noncommercial uses are already approved.
“That renders moot all the complex questions such as, ‘Is it a public performance?’ or ‘Is it a distribution?’ or ‘Is it a copy?’ The commercial rights can still be negotiated in the old way, but it does enormous work to clear out the gridlock of how copyright law functions in the context of the Internet.”
Such free licenses have already withstood legal challenges in the United States, as in the case pitting Robert G. Jacobsen, a software developer who shared a code he designed under a noncommercial, attribution artistic license, against commercial software developer Matthew Katzer. Deciding in favor of Jacobsen, the U.S. federal appeals court ruled in August 2008 that Katzer had violated Jacobsen’s artistic license. The ruling essentially established that “some rights reserved” licenses are enforceable under existing copyright law. Commenting on the decision, Lessig said: “[It] was critical for what we are doing. If they had gone the other way, the basic infrastructure would have been undermined.”
While the original CC license was developed in the American legal context, volunteers in countries around the world work to port it to other legal systems. In March 2004, Japan was the first country to import the CC license, which has now spread to a total of 50 international jurisdictions.
The organization’s popularity can also be measured by sheer volume. According to the Creative Commons Web site, there was an estimated total of 130 million CC-licensed works by 2008. A user-generated database on the Web site tracks case studies of licensed works, ranging from personal blogs in the Philippines to Sony Corp.’s eyeVio Internet and mobile video-sharing service in Japan.
Yet, the appearance of other Commons-like organizations underscores the fact that the movement is still in its infancy. In Japan, NicoNiCommons, founded by Niwango, the company behind the video-sharing site NicoNicoDouga, is just one of several commons-based copyright regimes available.
The Kyoto-born, Dubai-based entrepreneur Joi Ito, who replaced Lessig as CEO of Creative Commons in 2008 and was in Tokyo for Lessig’s Mori presentation, expressed reservations about this proliferation. Stressing the international appeal of a uniform platform, he said, “I look at Creative Commons as a standard, a specification like the Internet that allows people to interoperate. If you have NicoNiCommons and some other commons and so on, it’s like having 10 Internets that don’t connect. It’s very tricky because many of the (workers at other commons organizations) are our friends, but they are missing one of the most important aspects of Creative Commons, which is the interoperability. And I think that’s a risk.”
At the question-and-answer session following Lessig’s presentation, an audience member voiced concerns about Creative Commons’ automatic attribution requirement, stating that many Japanese creators preferred to remain uncredited in derivative works and therefore preferred Japan-specific alternatives. In his response, Lessig reinforced Ito’s earlier assertion about the necessity for interoperability, saying, “If we create lots of incompatible free licenses — licenses that create content that can’t be used in other free projects — then we’re creating a nightmare of incompatible culture that can’t be devoted to the objective that we all think we’re trying to serve by creating these licenses.”
Regardless of whether such pronouncements can encourage the further growth of Creative Commons, Lessig is adamant about the need for more individuals to take an active role in the evolution of the Internet as both a commercial and social space. Describing corporate appropriations of file sharing such as Apple’s iTunes Store as perfecting the Read/Only model of consumption, Lessig said, “You should feel less guilty buying from iTunes than from downloading music illegally, but you should feel very guilty if you’ve done nothing to try to change the (current regulatory) regime.”