Lessig and Leveraging FLOSS For Ethical Copyright

Lessig and Leveraging FLOSS For Ethical Copyright

(Does the academy need a different approach?)

Brendan Scott

I went to the Copyright Future: Copyright Freedom Conference that QUT put on at the end of May at Old Parliament House.   The conference included a lot of interesting talks by a lot of academics in the copyright sphere, mainly concerned with the reform of copyright law.   Disappointingly, the technology infrastructure was not open and few (if any?) of the talks were presented using open tools (even the pdf of the the conference program has issues with openness[1])…

One of those giving a talk was Prof.  Lawrence Lessig.  His talk was very well polished.  He has clearly given it often (the slides were timed to  be synchronised to the word with what he was saying – many slides had literally one word on them and flashed up as he said that word mid-sentence).  The arc of the talk was that copyright prevents legitimate, amateur use of works – use which is not only sensible, but was historically permitted.  He noted that the copyright law effectively classifies our children as terrorists.  He compared copyright to prohibition, and noted not only that prohibition was a failed exercise, but that it had harmful effects on civil liberties (eg wire taps were legal without a warrant for several decades in the US).

Prof. Lessig’s key message was that, while copyright is bad, it should not be abolished, but should be reformed.  In his view, private amateur uses of works should be legalised, while public professional uses should continue to be regulated, with a middle ground for public amateur and private professional uses.

My main concern with his talk, and, indeed, with the whole of the conference, was that there was a presumption that academic criticism of copyright was capable of effecting change in the copyright law.   Having witnessed first hand the irrelevance of logical or economic arguments in the face of the immense power that copyright cartels have, this presumption is one in which I have little faith.   The problem is not one of law, but one of power – power that is out of control.   Prof. Lessig does seem to be aware of this, given his stated intention to work in the future on institutional corruption.

For similar reasons I have little faith in the presumption that the digital world will render copyright obsolete.   If that was the case copyright was obsolete ten, if not twenty, years ago when the VCR did the Boston Strangler on “the American film producer and the American public” (which, as victims, nevertheless seem to be in remarkably good shape).  Despite its obsolesence, and despite the enormous costs from its harmful effects on individual action and innovation, copyright has shown no signs of moderating.  On the contrary, it has become more virulent.  This virulence is driven by political power, and an ideological blindness to the overall harm that copyright causes to authors, property and democracy.

The main issue is not, therefore, pointing out the manifold unethical, uneconomic or plain stupid aspects of copyright law.  Such an endeavour could support an untold number of academic careers – and would have as much practical impact as has criticism over the past 200 years.    Moreover, there is an internal logic to any monopoly which permits the above market profits from the monopoly to be used to further increase the scope of the monopoly and therefore the monopoly profits.  In other words monopolies like the copyright monopoly are both self perpetuating and self expanding.  Any change to the copyright law to align with reasonable, ethical civil society will be short lived because of this internal logic.  Indeed, the period between 1980 and today was a period of extensive deregulation of almost every sector of the economy.  This period aligns closely with a period of extensive legislative monopolisation of the copyright sector.  During the precisely the same period in which, for example, telecommunications monopolies were being forced to provide access to competitors at long run incremental cost (or some variation), copyright monopolies were actively encouraged to exploit those monopolies and have been further insulated from legitimate competition.  As an unfortuanate by-product copyright has had an increasingly corrosive effect on democracy  and property law – the French Hadopi legislation is but the most recent affront.

Rather, the main issue is in how to moderate the overwhelming power that a handful of cartels have and exercise.   In my view a good candidate to effect this is by moderating their funding.   This can be achieved by moderating their market.   The free, libre and open source software movement provides a case study in how this could be achieved.  For the most part, FLOSS does not fight copyright law.  There are some issues, such as laws against interoperability and the DMCA related issues (which are non-copyright laws against freedom inserted into the copyright act), but by and large  FLOSS accepts the copyright law as it is, and tries to provide an overlay on the law to convert it from being an unethical and inefficient system into an efficient, more ethical one (and moreover, one which actually helps authors, creators and the economy).  Merely by providing a viable alternative, FLOSS brings competition into the market and thereby disciplines it.  As FLOSS grows its effects become more widespread and it becomes stronger at self-perpetuating.  In the long run the logic of the market is that FLOSS will dominate most market segments, even in the face of closed competition or closed, monopolist incumbents.[2]

In my opinion, much of FLOSS’s success can be put at the feet of the fact that it creates a property-like market for intellectual output.  This is to be contrasted with Old Copyright’s Feudal-like market.  This property-like market of FLOSS increases the rate at which innovations are produced (as it permits individual actors to pursue their own interest based on the information known to them) as well as the velocity at which innovations are communicated through, and implemented by the market.   This is to be contrasted with copyright’s Feudal structure – in which any actor must continually beg permission of an overlord before doing anything new.


[1] Ie: Not accessible with Linux/FF (no flash).   I haven’t signed up for the site (why I should have to sign up in order to access a conference program is not clear to me) but maybe it might be more “open” if I did so.

[2] In theory FLOSS is at a disadvantage in niche markets – as there is a smaller contributor pool.  However, empirically it is those niche markets where FLOSS has succeeded, and has had a harder time in more general markets (probably because of the value of marketing and incumbency).   In general markets where FLOSS has succeeded (eg web servers, CMSs) it is difficult to see how any non-FLOSS entrant could displace the model, even with substantial loss leading or buying of market share (see graphs – note “Google” is FLOSS, as is the new entrant nginx).


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