Archive for May 10th, 2010

ASMP and Lessig

Monday, May 10th, 2010

First off, I want to make it clear that I think ASMP is (still) a great organization made up of people who have the best intentions to help photographers. Unquestionably, that is so. They do a hell of a lot of good and I am still a proud member. Also, with the changes in the economy I applaud their efforts in trying to help the industry figure out new and better ways of exploiting the intellectual property photographers create and how they work with clients. Now is definitely the time to evolve.

That being said, I am extremely concerned about ASMP’s recent interactions with Lawrence Lessig. He was one of the speakers at the recent Copyright Symposium and, although I can understand giving “the other side” a voice, I think he needs to be ignored/silenced as much as possible. Mr. Lessig is a brilliant man, but he has done more harm to small creative businesses than any other single human in the US, in my opinion. And he continues to be dangerous.

Creative Commons and the encouragement of “sharing” instigated and promulgated by Mr. Lessig have hurt a lot of creative people. Many have lost their businesses and seen their professional dreams crushed. The idea of “free” content and “free culture” is very much his personal responsibility. His past writings and lectures indicate he did intend exactly what he has achieved culturally, to the detriment of small creative businesses. See the wikipedia entry on the Free Culture movement, and this video of Lessig himself at copybyte.com/z/w4 .

Recently, however, Mr. Lessig has (sort of) changed his tune. He is now claiming that he was trying to get the idea of licensing to the masses and that his intention was to fight against the big business corporate “abuse” of copyright. I’m skeptical. While he may be anti-corporatism (a good thing in my book), I think he still does not see the needs of the little guy and, thus, his idea of balance is off.

For example, he still speaks out against the laws eliminating arcane formalities in order for protections to apply. He claims, in the video cited above, that requiring the formalities was good because it limited how much IP is protected (reducing the number of IP monopolies). He claims that extending copyright terms has no justification (in originalist constitutional policy) but rather was based in modern big corporatism (he doesn’t even consider the extension of the human lifespan over the past 200+ years as well as how there are new methods of exploitation). And sure, Disney benefits by these laws, but so does Bob’s Photography. He misses that completely.

He spins the issue very well, as a good lawyer should, especially an academic one like him. Yes, we need to find new approaches to exploiting the rights of photographers (& other creatives), but his way has most definitely not been the way. Yes, copyright may impede some creative growth, but what about all the incredible creative growth we have seen thus far in our society? Growth done WITH these “onerous” copyright laws? More and more creativity just as the laws have gotten “worse” in his view. How is that possible, Mr. Lessig?

Additionally, at the end of the video cited above, please note that Lessig talks about his new crusade: anti-corruption. Gosh that sounds great, but when you look more closely at what he is saying, it seems to me that it is more of a call to anarchy. He mentions earlier in the lecture that he thought he’d win in front of the Supreme Court and when he didn’t, he discredited the rationale and thinking of the court. Then, he talks about how we have relied on courts to interpret our laws and how maybe that isn’t such a good idea anymore. Really? We should overturn centuries (going back to the Magna Carta, and beyond, really) of reliance on the rule of law as interpreted by people who have devoted their lives to the law and, instead, let the people decide? Really? The same people who think President Obama is a foreigner and that Palin is smart?

To paraphrase Monty Python (The Meaning of Life), the people are not qualified to make the decisions the courts make. Interpretation of the law is a highly specialized intellectual skill (I’m definitely learning that in law school!). Although we (the people in general) have access to more and more information on diverse topics, the knowledge of the people is paper thin in depth, quite often. We the people do not know everything and although we know more than ever we often do not know well that “more.” For example, I know enough about how a combustion engine works to be able to tell my mechanic that I think the problem is in the fuel system, but I am not at all qualified to repair my car.

Moreover, we have to have some faith that our institutions, as flawed as they may be, will continue to work. That’s fundamental to society– faith that the systems we have created will work. So, yes, the courts get it “wrong” sometimes, but they get it right far, far more often (we just don’t hear about the right as much in the news). I cite the state of California for how not having faith in our systems and letting the people decide mean that nothing ever gets done. Here in California, the people vote on proposition after proposition, overturning what the legislature does, meaning well but not really understanding the issues and ramifications of the details of the propositions, and then complaining when the system doesn’t work. Well duh! It’s no wonder this state is circling the drain in many ways (although it is a huge shame).

My point (albeit a bit rambling) is that Lessig knows how to push a listener’s buttons to make his ideas sound not only reasonable, but good. Just like it sounds like a great idea for Californians to get to vote on every issue, in reality, it makes things worse. Lessig’s arguments about stifling creativity sound very good, but they are well spun and ignore the reality that creativity has hardly (if at all) been stifled by the laws we have. We, as an industry, must not be taken in.

I hope, most sincerely, that Mr. Lessig has indeed seen the errors of his ways and that he will now contribute to improving the lives of creative professionals. He owes it to them after the damage he has caused via CC, etc. But he has not fundamentally changed his tune, just his spin. And until he proves himself no longer a real enemy to the best interests of photographers and other small creative businesspeople (and I do not use the word “enemy” lightly!), we should not entrust him to be anything other than that which he has proven to be.