(more) lessig
Congress amended the law to make sure that composers would be paid for the “mechanical reproductions” of their music. But rather than simply granting the composer complete control over the right to make mechanical reproductions, Congress gave recording artists a right to record the music, at a price set by Congress, once the composer allowed it to be recorded once. This is the part of copyright law that makes cover songs possible. Once a composer authorizes a recording of his song, others are free to record the same song, so long as they pay the original composer a fee set by the law.
-Lawrence Lessig
The November 2004 issue of Wired Magazine included a CD created to accompany a story on Creative Commons Licensing. In the magazine, and online, readers are encouraged to rip, sample, mash, and share. What do we do when the technologies enable and encourage action that the law forbids? Lessig asserts, quoting Charlie Nesson, that we cannot make an ass of the law, insisting, “What does it say about our democracy, that ordinary behavior is criminal?” This episode is a staple of Lessig's presentations, and fairly faithfully reproduced on a number of blogs, this one perhaps being the first we encountered.
Lessig's insistence that corporate interests should not be able to over-assert their copyright by insisting that uncopyrightable and unpatenable ideas be copyrighted and patented. Indeed, popular music was seen as a special case by Congress at the turn of the 19th into the 20th century, particularly regarding "derivative works." Intellectual property is still a contentious subject in the ongoing development of the law, although definitions and extensions of law have been accepted between publication of The Future of Ideas and Free Culture.
Access to software and sound loops determine each user, each prosumer's, abilities to participate. By eliding distinctions between public and private, and blurring distinctions between demonstrable and asserted damages, corporations have not only treated the law as a fool, but have saddled the courts with the unenforceable responsibility of policing individual, private, non-commercial activity. The law is not the beast of the corporations, or perhaps it would be wiser to assert that the law ought not be exclusively under corporate control.
Ultimately, Lessig's worries are all too well founded. In seeking to protect the small provincial interests of intellectual property holders, the source of cultural capital will cease to produce wealth that has accompanied the technological revolution, "ignoring the nature of the actual prosperity all around, we change the rules within which the Internet revolution lives. These changes will end the revolution."
But who profits by ending the revolution? Curiously enough, the very corporations working to stifle musical and other innovation become enriched by innovative free culture, although such institutional modes of understanding might not immediately reveal the ways their organizations profit. Congress was creative and innovative when defining rights for an age of mechanical reproduction. Thus far, Congress has not been able to articulate new law for the age of digital reproduction.
