OSBC2004: Larry Lessig on the Creator's Dilemma


The first general session of the afternoon (which in the tradition of modern conferences is called a keynote, along with every other general session) is Prof. Larry Lessig of Stanford. Larry needs no introduction to many people as a champion of the commons and author of The Future of Ideas : The Fate of the Commons in a Connected World and Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. Larry is a great speaker and this talk is no exception.

Larry starts off with a brief history of photography and the court decision that was rendered sometime around the same time Eastman introduced the Kodak camera that said "images are free." Without that legal decision, photography would been a much smaller industry. If it had gone the other way, perhaps we would have had a "Daguerreotype Machine Control Act, or DMCA.

Comparing that to today yields a very different result since images, sounds, and other digital goods are not free and in fact are controlled. His point is that this opportunity cost is huge and holding back the market. These unintended consequences are the product of outdated law which is imposing burdens that benefit no one directly.

From 1790-1976, the copyright regime in the US was conditional such that only a tiny proportion of public works were regulated by copyright law. Since 1976 we've had an unconditional regime. No registration, notice, deposit, or renewal is required to get copyright protection. This means that the ability to build and transform upon large parts of our culture requires permission (and hence lawyers) first. This is a burden to the creative process.

This unintended burden is an irrational, unintended burden. There is also a rational piece to this. The rational choice is to be "boring." This is an intentional move by large holders of created works to suppress creative innovation. Larry gives the example of "All in the Family" being offered first to ABC and ending up on CBS as a result of artistic control. In 1976, 75% of television content was produced by independents. Now, 75% of television content is produced by the studios themselves. A big shift in artistic control.

This choice to be boring is a rational step to avoid competition. Larry gives three examples of piracy (including a Peanuts clip, the Grey Album, and a take with Bush and Blair singing "My Love" to each other) that are powerful messages but are at present illegal. This is a democratic potential, but also a creative potential.

Larry gives "science" as an open collaborative model for producing public goods. Other examples include IETF standards, open source software, the human genome project, and the GPS (global positioning system).

There is an IP McCarthyism that is exacerbated by the copyright war. This has created a bipolar world, where you are either for maximal IP protection or you are against intellectual property. (I have to say, that Slashdotters take the opposite position from the RIAA and MPAA in a way that gives credence to this claim.)

Larry now takes on that exact issue: Technologists do nothing to help this debate. He suggests some principals:

  • We believe in competition between and within business models.
  • Monopolies tend to weaken this position and open systems tend to strengthen this position.
  • Our support for open systems is a belief that they are an antidote to the innovator's dilemma and the creator's dilemma.
  • Through support of open systems and resistance to the bit-head way of thinking was can regain the Kodak opportunity.

This is not a debate between commerce and something else, or a debate between capitalism and communism, we will not regain the seemingly lost opportunity. This debate is not about doing something other than commerce---its about stopping powerful forces from stifling creativity.