Tim O'Reilly: Good morning! Thanks for coming out so early. I once read a quote from Edwin Schlossberg who said "The skill of writing is to create a context in which other peoplel can think. Larry Lessig first came onto my radar several years ago when I read his book Code and other Laws of Cyberspace. And it immediately brought that quote to mind because Larry gave me a framework for thinking about all of the issues I was wrestling with in technology. And since then I've become a huge fan. He's spoken at, I believe this is the fourth of our conferences. He's an incredibly stimulating thinker about the legal frameworks in which we all operate and why it's important for us as a community to think about those issues and those frameworks.
Larry when I first met him was a professor at Harvard, then he went to Stanford. Now he's on partial leave as he's working on a new project called the Creative Commons, and he'll probably be talking a little bit about that. He's probably also come on your radar because of the case of Eldred v. Ashcroft, which he's pleading, I believe, on October 9th before the Supreme Court. This is a case that has to do with professional extension of copyright and why that should not be allowed to happen. In hacker circles this is sometimes referred to as the "Free Mickey Campaign."
I really urge you, if you haven't read Larry's books, to go out and buy them, and should certainly listen very hard to what he has to say today and incorporate into your thinking the issues that he's bringing to the fore.
Lawrence Lessig: So I've been doing this for about two years. More than a hundred of these gigs. This is about the last one. One more and I'm through.
And I figured I wanted to write a song to end it. But then I realized that I don't sing and I can't write music. But I came up with the refrain, at least. And this captures the point. If you understand this refrain, you're going to understand everything I want to say to you today. It has four parts. First:
| 1) Creativity and innovation always builds on the past.
2) The past always tries to control the creativity that builds upon it. 3) Free societies enable the future by limiting this power of the past. And 4) Ours is less and less a free society. |
1774: Free culture was born. In a case called Donaldson v. Beckett in the House of Lords in England, free culture was made because copyright stopped.
In 1710, this document then had said that copyright should be for a limited term of fourteen years, but in the 1740s, when Scottish publishers started reprinting classics (you've gotta love the Scotts), the London publishers said "Stop." They said, "Copyright is Forever." Sony Bono said that copyright should be forever minus a day, but the London publishers said copyright is forever.
These publishers, people who Milton referred to as "old patentees and monopolizers in the trade of bookselling... men who do not labor in an honest profession (except Tim here) to which learning is indebted..." these publishers demanded a common law copyright that would be forever.
In 1769 in a case called Miller v. Taylor they won their claim, but just five years, in Donaldson, Miller was reversed, and for the first time in history the works of Shakespeare were freed: freed from the control of the monopoly publishers Freed culture was the result of that case. Remember the refrain.
That free culture was carried to America. That was our birth: 1790. We established a regime that left creativity unregulated.
Now it was unregulated because copyright law only covered "printing." Copyright law did not control derivative work. And copyright law granted this protection for the limited time of fourteen years. That was our birth. And more fundamentally, in 1790, because of the technology of the time, all things protected were free code. You could take the works of Shakespeare and read the source. The source was the book. You could take the work of any creativity protected by the law and understand what made it tick by studying it.
This was the design, and the regime.
And even in the context of patents, there were transparent technologies. You didn't need to take the cotton gin and bead the cotton to understand how it worked, right? You could just take it apart. These were legal protections in a context where understanding and learning was still set free. Control in this culture was tiny. (Slide of a tiny © in a large surrounding disk of white.)
And not just then. Forget the 18th Century and the 19th Century. Even at the birth of the 20th Century (and here's my favorite example)...
1928. My hero, Walt Disney, created this extraordinary work: (brief animated sample of Steamboat Willie). The birth of Mickey Mouse in the form of Steamboat Willie. But what you probably don't recognize about Steamboat Willie and his emergence into Mickey Mouse was that, in 1928, Walt Disney quote — to use the language of the Disney corporation today — "stole" Wille from Buster Keaton's Steamboat Bill. It was a parody, a take-off, a building-upon Steamboat Bill.
Steamboat Bill was produced in 1928. No fourteen years. Just take it, rip, mix and burn — as Steve tells us — to produce the Disney empire. This was his character. Walt always parroted feature length mainstream films to produce the Disney empire. And we see the product of this. This is the Disney corporation. Taking works in the public domain and not even public domain, and turning it into vastly greater new creativity. (Slide of Disney movies that were essentially remakes of existing stories: there are many.)
They took the works of these guys, the Brothers Grimm, who you think are probably great authors on their own. They produced these horrible stories, these fairy tales which anybody should keep their children far from, because they are utterly