NOTE-1023: Lessig — Remix: Making Art and Commerce Thrive in the Hybrid Economy

Contribution

It names two cultures by how their works are used: Read/Only culture, “made to be consumed”, and Read/Write culture, “made to be remade” (p. 116). It argues that digital tools revive RW culture at the moment digital copying brings it under copyright for the first time. It adds an account of the economies that could sustain it (commercial, sharing, hybrid) and five legal reforms. It closes Lessig’s run of books on copyright (Code, The Future of Ideas, Free Culture). The Acknowledgments say his focus is moving elsewhere (p. 295). The Preface states the motive: the copyright war is criminalizing a generation, and “Criminalizing an entire generation is too high a price to pay for almost any end.” (p. xviii).

Key insight

The law did not decide to regulate amateurs; two architectures collided. Since 1909 copyright has regulated “copies”, and digital technology makes a copy at every use. So reading, playing and quoting, which in print triggered nothing, now each need a licence or a fair-use defence: “By default, RW use violates copyright law. RW culture is thus presumptively illegal.” (p. 100). Remix is caught hardest, because it cannot avoid the copy. Its meaning “comes from the reference, which is expressible only if it is the original that gets used.” (p. 74).

Assumptions

• US law, 2008. The legal argument is about the US Copyright Act, with Sony, Grokster, Bridgeport v. Dimension and the 1909 and 1976 revisions. Ch. 9 n. 12 concedes that international obligations limit the reforms.
• The RAM-copy reading of “copy”. “To read a book requires permission” (p. 100) holds only if a transient copy in memory is a copy in law. Lessig cites Litman for it and hedges with “technically” and “subject to ‘fair use’”, but argues from the strong form.
• RO and RW differ by degree. “RW creativity would become less significant; RO culture, more.” (p. 29). No one feared amateur creativity would vanish. The legal argument of ch. 5 nonetheless treats them as separate kinds of use.
• Money changes a relation. The sharing economy is defined by money being the one inappropriate term (p. 118). His “only claim” about it is Benkler’s crowding-out proposition, cited through Benkler to Frey and qualified at once: “Often, not always” (p. 150).
• Sources. Much of chs. 6–8 rests on Lessig’s own interviews with founders and executives. The figures come largely from press, industry and Wikipedia sources.

Key results

The book’s results are arguments, not theorems or measurements. Listed in the order the book makes them.

• The two cultures (ch. 1). RW culture is one where people “add to the culture they read by creating and re-creating the culture around them” (p. 28); “Culture in this world is flat; it is shared person to person.” (p. 28). RO is “more comfortable (think: couch) with simple consumption.” (p. 28). Sousa’s 1906 testimony is the witness both that recording would make us “just consumers of culture, not also producers” (p. 25) and that copyright should not reach singing together (pp. 31–33).
• RO extended (ch. 3). Analog copying was limited by economics more than law. Digital copying changes that: “What before was both impossible and illegal is now just illegal.” (p. 38). Jobs’s iTunes showed that digital technology has no fixed nature (p. 40). Lessig predicts free, ad-supported access over policing (pp. 47–49), and says “That choice is a false choice.” of protecting RO by outlawing RW (p. 50).
• Remix is quotation (ch. 4). A friend’s essays built from quotations: “Were it music, we’d call it sampling. Were it painting, it would be called collage.” (p. 51). With text, “the cite is always sufficient payment” (p. 52). Quoting a film clip is the same act: “The act is the same; only the source is different.” (p. 53). Media remix quotes in layers (sound over image), and “Sounds are being used like paint on a palette. But all the paint has been scratched off of other paintings.” (p. 70).
• Why the original (pp. 74–76). The reference carries the meaning, so only the original will do. Victor Stone: four notes of the Beatles’ “Revolution” mean something. The Mashin’ of the Christ could not be made by shooting another crucifixion film. The summary: “remix is collage; it comes from combining elements of RO culture; it succeeds by leveraging the meaning created by the reference to build something new.” (p. 76).
• What remix is good for (pp. 76–82). Community, with anime music videos and Mimi Ito’s contrast between Japanese and US children’s media. Education, as “interest-based learning”. Only the technique is new: “All that’s new is the technique and the ease with which the product of that technique can be shared.” (p. 82). What held remix back was cost, and “Digital technologies have now removed that economic censor.” (p. 83).
• The cultures compared (ch. 5). RW work “is offered as a draft. It invites a response.” (p. 85). On quality Lessig concedes the first objection outright: “The vast majority of remix, like the vast majority of home movies, or consumer photographs, or singing in the shower, or blogs, is just crap.” (p. 92). Even if culture were declining, “Subsidies are one thing. Prohibition is something radically different.” (p. 97).
• The copy trigger (pp. 97–103). From 1790 to 1909 the law regulated printing, publishing and vending. The 1909 revision generalized “copy”, which before had reached statues and not books. Patterson calls it probably a drafting error (ch. 9 n. 10). Its reach then grew with copying technology. With digital tools, “For the first time, the law regulates ordinary citizens generally.” (p. 103).
• The case against the war (pp. 109–114). The file-sharing war has failed, by the BigChampagne user counts. The remix case is “a thousand times stronger”, because it is a matter of literacy (p. 114). The burden goes to the regulator: “We need to decriminalize creativity before we further criminalize a generation of our kids.” (p. 114).
• Three economies (ch. 6). An economy is a practice of exchange sustained through time (p. 117). Following Benkler, a commercial economy is one where price is a term of the ordinary exchange. In a sharing economy money is the one inappropriate term: “Money in the sharing economy is not just inappropriate; it is poisonous.” (p. 119). The internet’s commercial successes rest on Long Tails, “Little Brother” (data gathered as a by-product of use, after Bricklin) and LEGO-ized innovation (pp. 128–141). Wikipedia is the paradigm sharing economy (pp. 156–162). Sharing economies can be thin, with me-regarding motives, or thick, with motives at least ambiguous between me and thee (p. 152).
• Hybrids (ch. 7). “The hybrid is either a commercial entity that aims to leverage value from a sharing economy, or it is a sharing economy that builds a commercial entity to better support its sharing aims.” (p. 177). It lasts only while the two economies stay distinct (pp. 177–178). Free software and Red Hat are the paradigm. The catalogue runs from community spaces (craigslist, Flickr, YouTube) through collaboration spaces (Slashdot, Yahoo! Answers, Wikia, Warner’s Harry Potter fan sites, Lost) to communities (Second Life). “No one builds hybrids on community sacrifice.” (p. 224).
• Economy lessons (ch. 8). Lessig opens by saying “We’ve not yet seen enough to say anything conclusive” (p. 225). Parallel economies are possible. Licences signal which economy a creator works for. Hybrids will grow because revealing information pays (after von Hippel and Baumol). Perceptions of fairness will mediate. “Sharecropping” terms that take all rights in contest remixes will lose. Lessig’s research assistant surveyed some 25 remix-contest sites in April 2007: in 28% the remixer kept no rights (p. 244).
• Reforming law (ch. 9). “Copyright law must be changed. Changed, not abolished.” (p. 253). There are five changes:
  1. Exempt amateur remix from clearance: free use, not fair use. A 2×2 of professional and amateur against copies and remix leaves only professional copies fully controlled (pp. 254–256).
  2. Require registration after an initial term, about 14 years in “one proposal”, or the work becomes free or cheap to use (pp. 260–265).
  3. Simplify, with uses that copyright does not reach listed in the statute (pp. 266–268).
  4. Regulate uses, such as public distribution, not the copy (pp. 268–271).
  5. Decriminalize file sharing by a levy (Netanel, Fisher) or a voluntary blanket licence (EFF) (pp. 271–272).
• Reforming us (ch. 10). Lessig wants the norms of text, where you answer a bad opinion rather than sue, to govern culture generally (pp. 274–276). Creative Commons does voluntarily four of the five reforms (pp. 277–279). His own Code was “an apology for regulation”; now regulation has limits, and past a point more of it reduces control (pp. 280–282). The Conclusion blames the war on campaign money (p. 294).

Claims

id	claim	strength	support
C1	Because copyright regulates copies and digital use always copies, the law now reaches ordinary, amateur uses it never reached in print	moderate	statutory history 1790–1909–1976 (Reese, Patterson); rests on the RAM-copy reading, which Lessig hedges
C2	Remix’s meaning depends on the reference, so it needs the original rather than a re-creation	moderate	argument from examples (Stone, Negativland, Mashin’ of the Christ) and interviews
C3	RW creativity does not compete with or weaken the market for what it remixes	weak	asserted (p. 56); the burden is put on regulators (p. 114)
C4	The twentieth century was the first in which popular culture was professionalized	moderate	phonograph, piano-roll and record figures (ch. 1, mostly secondary sources)
C5	In a sharing economy money is inappropriate and can crowd out the activity	weak to moderate	Benkler and Frey at second hand; Hyde; anecdote; “Often, not always”
C6	Hybrids last only while the commercial and the sharing are kept distinct in participants’ eyes	weak	founders’ interviews; Lessig says how “cannot be answered in the abstract” (p. 178)
C7	The war on file sharing has neither stopped sharing nor paid artists	moderate	BigChampagne user counts, RIAA sales figures; the effect of piracy on sales is contested in n. 15
C8	Perceived unjust copyright law weakens young people’s respect for law generally	weak	anecdote and one essay in the text; the evidence in ch. 10 n. 8 (Nadler, Tyler), graded there by Lessig himself
C9	Free amateur remix, registration after a term and the other reforms would not “threaten one dime” of existing markets	weak	asserted (p. 253); no analysis

Concepts

• RO (Read/Only) culture. Culture made to be consumed, carried by “tokens” (recordings fixed and sold), dominant in the twentieth century.
• RW (Read/Write) culture. Culture made to be remade, where readers also create, with the tools professionals use. From the file permission of the same name (p. 28 footnote).
• Remix. Collage of elements of RO culture that works through the meaning of the reference. In ch. 9, “Remix” is transformative work, and “Copies” are efforts to make the original more accessible without changing it (p. 255).
• Commercial economy. One where money is a normal term of exchange.
• Sharing economy. One where money is not a term of exchange, though participants may be paid elsewhere and may act for themselves. Thin where motives are me-regarding, thick where they are at least ambiguous between me and thee.
• Hybrid. A commercial entity that leverages a sharing economy, or a sharing economy that builds a commercial entity.
• Little Brother. A system that learns what its users want from the data they give off while using it, after Bricklin’s “Cornucopia of the Commons”.
• Sharecropping. Hybrid terms that take all rights in contributors’ work, as in the Lucasfilm and Sony contest rules (pp. 243–248).
• Free use. As against fair use: uses outside copyright’s scope altogether, proposed for amateur remix (p. 255).

Connections

The book builds on Benkler (Wealth of Networks, “Sharing Nicely”) for the economies, von Hippel for democratized innovation and free revealing, Hyde’s The Gift for gift exchange, and Litman, Patterson and Reese for the history of “copy”. It takes the Potter Wars and the split between “prohibitionist” and “collaborationist” companies from Jenkins’s Convergence Culture (LIT-1121; ch. 7, ch. 10 nn. 3–4), with interviews of the participants. Tapscott and Williams’s Wikinomics supplies many of the platform cases. It does not cite Titmuss or Zelizer, the standard sources for crowding out and for the social meaning of money, and cites Mauss only through Hyde.

Bearing on the record

• CASE-100 (the Juggernaut redub). The book has the frame the case needs and not its question. On Lessig’s terms the redub is RW remix of an RO token, circulated in a sharing economy and taken up by a commercial one. The film used the line rather than the redub, so no copy of the fans’ work was involved. His nearest case is Warner and the Harry Potter fan sites (pp. 205–212). There the studio dealt with fans as a party, by cease-and-desist letters and then a negotiated line. It does not ask what produced the outcome.
• CLAIM-332 (distributed cultural uptake). Lessig’s unit is an economy: a practice of exchange sustained by its participants’ motives and norms. He never asks whether a population of remixers acts or has effects as a population. So the book neither supports nor bears against CLAIM-332, but it does supply its mechanism’s terms: making, selecting and passing on, in a sharing economy, with uptake by a hybrid.
• QUESTION-002 and CLAIM-002 (what survives a retelling). This is the sharpest point of contact. CLAIM-002 says a retelling’s identity is a family of relations: identity of the artifact, continuity of transmission and similarity of function. Lessig’s argument about why remix needs the original (pp. 74–76) says that for remix the first relation is what does the work. A remix means what it means because the audience recognizes the very artifact, and a re-creation with the same content would lose that. That is the reverse of translation, where re-expression is the point. The record could ask whether recognizability of the artifact is a preservation target in its own right, next to QUESTION-023’s opacity of insider vocabulary.
• CLAIM-034 (fidelity among other goals). Political remix (Söderberg’s Bush/Blair “Endless Love”, pp. 73–74) is a rendering whose goal is critique or parody, which CLAIM-034 lists beside fidelity.
• Unread neighbours. It relies on Jenkins (LIT-1121) for its Potter Wars material, so a reading of LIT-1121 would check that. Jenkins, Ford and Green’s Spreadable Media (LIT-1143) argues the circulation side that Lessig treats as a sharing economy.
• No instruction for machine-learning practice, and not held by the anthology.

Limitations

• The economic core is not shown. That remix does not compete with its sources (p. 56) and harms no one (p. 114) is asserted, and the burden is put on regulators. Crowding out carries the hybrid argument but is cited at second hand and qualified as “Often, not always” (p. 150).
• The evidence for the economies is a convenience sample. The hybrids are successes, told by their founders in Lessig’s own interviews. Of the six economy lessons he says nothing is conclusive. The contest-site survey (about 25 sites) is unpublished.
• The category lines move. The sharing economy is first defined by money being inappropriate (p. 118), later by terms “not centered on cash” (p. 172). Thin cases such as the stock market and Skype stretch it to by-products of commerce. Ch. 9 equates amateur with noncommercial, then calls the Grey Album, distributed noncommercially, professional.
• The reforms are sketches. No rates, administration or definition of amateur are given for the levy or the exemption. That they would not “threaten one dime” of existing markets (p. 253) is not analysed. The claim that Creative Commons enables four of the five overlooks that NoDerivatives licences forbid remix and that a licence cannot remove the statutory copy trigger.
• The effect on youth rests on anecdote in the text: the RIAA lawsuits, hundreds of conversations and one teenager’s essay. The careful evidence, and Lessig’s own grading of it, is in ch. 10 n. 8.
• Small inconsistencies. RO is dated from recording technology (p. 116) but credited to Gutenberg (p. 36). The “250 percent increase” in copyright litigation (p. 39) does not match ch. 3 n. 11’s own table (2,056 to 5,488 district-court filings, 2000–2006, an increase of about 167%). Britney Spears “draws on nothing” (p. 95) sits badly with the thesis that all art builds on earlier art (pp. 8, 107).
• Dated predictions: open access to everything written within ten years (p. 67), the remix debate over in ten or twenty (p. 97), “Every interesting Internet business will be a hybrid” (p. 116).

Open questions

• Does remix substitute for its sources or complement them? An empirical answer would settle C3, which the book leaves on the burden of proof.
• Under what conditions does adding money crowd out a sharing economy, and when does it not? Lessig names the question for hybrids (p. 178) and does not answer it.
• Where should the line between amateur and professional fall in law, if not at commerciality?
• For the record: is recognizability of the source artifact a property a rendering can be required to preserve, and how would it be measured, given that the translation line’s measures (CLAIM-220, CLAIM-210) are about communicative distinctions rather than tokens?