TalkBack: Manes
So Free Culture will be released next week, and the reviews have begun. As I've mentioned, I'll be collecting these reviews on the book's website -- both positive and negative, and good and bad. And here I'll be commenting about a few of those, as it seems appropriate. (I'm not sure yet what the algorithm for "seems appropriate" will be: if a review can be positive/negative as well as good/bad, then most likely I'll think it "appropriate" to respond to what, imho, is a bad-negative review. But we'll see. I certainly won't be echoing good reviews here.)
The first to qualify then is this extraordinary review in Forbes by Stephen Manes.
My single greatest fear in writing "Free Culture" was that the point of the book was too obvious. It was obvious, I thought, that the law has radically changed. It was obvious, I thought, that it effected a much greater regulation over the creative process than ever before. It was obvious, I thought, that its regulation is in places wildly inefficient. And it was obvious, I thought, that the current law represents a radical change from the past. As I've said before, I'd be totally satisfied with copyright law as it was in 1975. Indeed, the reforms I sketch in the book would still result in a copyright law that is more restrictive than what it was in 1975.
Yet Manes has at least shown that the point of the book is not obvious. He has renamed the book -- "Freeloader Culture: A Manifesto for Stealing Intellectual Property" -- but his hilarious review never quite reconciles his view with our history. Is he saying America was a "Freeloader Culture" for 190 of our 213 years? Has virtue only today come to American IP policy?
My favorite part of this review is this:
First he [Lessig] reasonably extols "‘Walt Disney creativity'--a form of expression and genius that builds upon the culture around us and makes it something different." But then, in a rhetorical bait-and-switch, he spends most of the book making the case that a free pass should be given to the specific kind of "creativity" that directly reuses existing work, up to and including wholesale sampling and so-called sharing. That's nuts. Disney reworked public-domain material like "Snow White" gratis, but paid to use copyrighted works like Peter Pan."
It's certainly true that I praise "Walt Disney Creativity." But Mr. Manes does the great master a great disservice when he underplays the significance of his "reworked public domain material." Here's a list of those "reworkings": Snow White (1937), Fantasia (1940), Pinocchio (1940), Dumbo (1941), Bambi (1942), Song of the South (1946), Cinderella (1950), Alice in Wonderland (1951), Robin Hood (1952), Peter Pan (1953), Lady and the Tramp (1955), Sleeping Beauty (1959), 101 Dalmatians (1961), The Sword in the Stone (1963), and The Jungle Book (1967) — not to mention a recent example that we should perhaps quickly forget, Treasure Planet (2003).
UPDATE: As Mr. Manes' later entry makes plain, this list is (1) cut and pasted from my book, and (2) not a list of "reworked public domain material." I apologize for the careless error. The list as it appears in my book is a list of Disney works that build on others' work. As you can see here, I don't say in the book that it is a list of works that were in the public domain. It was a stupid error to make here, and again, I apologize.
It is true Disney pays to use the Peter Pan story, but the real question stockholders should be asking the Disney Corporation is why. The essence to the Peter Pan story is in the public domain in the United States -- the threats of the current copyright holders notwithstanding. Indeed, the idea that you should have to pay to use material whose copyright has plainly expired is exactly the kind of extremism my book was meant to question.
There are other gems in this very well written (really) review: e.g.,
"There has never been a time in our history when more of our ‘culture' was as ‘owned' as it is now," Lessig huffs. Huh? In the 1920s, 1930s and 1940s a handful of companies exerted ironclad control over the movie, radio and record businesses; Xeroxes and tape recorders were nonexistent.Um, yea. That's right. They were (and are) concentrated industries. But the concentration of the "movie, radio and record business" is different point from whether the "culture" was "owned." The claim about the ownership of culture is a claim about copyright law. And there is absolutely no doubt that the proportion of "culture" subject to the regulation of copyright law in the 1920s, 1930s, and 1940s was tiny compared to today. Then, to get a copyright, you had to register and renew the work. The initial term was 28 years. The average term was 30. Today, you get a copyright automatically, whether registered or not, for a full term, which is 95 years for corporate works, life plus 70 for the work by authors. More of our culture is therefore "owned" today than in the 20s, 30s, and 40s, and indeed -- as I said -- more now than at anytime in our past.
Or again:
"Fair use" exceptions in existing copyright law--like the ones that let me quote Lessig here--are so expansive that just about the only thing cut-and-pasters clearly can't do legally with a copyrighted work is directly copy a sizable portion of it. Even then, there are many exemptions for classroom, library, archive and personal use. And the Web lets you legally link to copyrighted material.
I love it when non-lawyers sing of the virtues of "fair use." The only thing this claim demonstrates is that this reviewer didn't bother to finish reading the book. "Fair use" in America is the right to hire a lawyer. Wonderful. And in fact, the "Web" does not let you "legally link" to copyright material. Ask 2600 about the rights to link in America today.
Manes has made it clear that there is a lot more to be said in this debate. My book may well fail to say it well. (Failing to convince is after all my forte.) But that a technology writer feels so confident about his views about the history of copyright law that he could write a review like this shows just how much more work is left to be done.
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Comments (23)
"Fair use" in America is the right to hire a lawyer
A gem of a quote!
the "Web" does not let you "legally link" to copyright material. Ask 2600 about the rights to link in America today
Nit: For 2600, it's not "copyright" material, it's "circumventing" material. The outcome of the 2600 case didn't hinge on the copyright of DeCSS itself.
Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc. is a better example for copyright, though it's not net-famous.
I will respond to this statement. "It is true Disney pays to use the Peter Pan story, but the real question stockholders should be asking the Disney Corporation is why."
Make no mistake, Eisner's contempt for writers has been the source of longstanding backlash in the creative community. His leadership encourages Mousewitz executives to consider themselves to be actual authors.
Using public domain materials is an excuse for Disney to chisel creatives. Experienced Hollywood hands will caution you not to take ideas into Disney. And not merely because of the non-negotaible lowball prices. They simply steal your idea and run with it.
I agree that old Walt had a special genius, but the Halls of Eisner have a different feel. Eisner is no Disney. The transition to digital reverberates through the ranks of entertainment workers, and Disney/ABC cannot withstand the tsunami under a leader who despises technology.
See LA Times today, for article entitled "Toontown darkens for L.A.'s animation artists, as computers and an overseas workforce overtake their future."
http://www.calendarlive.com/movies/cl-ca-george21mar21,2,3224957.story
Responsing to tomsong's comment:
While you are entitled to your opinion,
I find it odd that you give a hint that
it is wrong to copy (or to use your own
word, "steal") anyone's idea and exploit
it. In the U.S., ideas are not owned by
anyone and anyone can use the ideas for
anything. So, I ask you, what's wrong
with that?
Joseph Pietro Riolo
<riolo@voicenet.com>
Public domain notice: I put all of my expressions
in this comment in the public domain.
I believe you forgot "The Hunchback of Notre Dame" (1996) based on a Victor Hugo novel, IIRC Hugo is not even cited in the Disney movie at all.
Victor Hugo about the balance between authors and public rights.
Laurent
A little dissection of the Forbes review
The Forbes' review is going to be the rule, I think, and in response, certain points need to be fought on economic grounds. Forbes is spot-on in stating bluntly that "America's greatest worldwide success" are due to "intellectual property." Of course, if the writer were a Soviet citizen, they might have said something just as nice about Soviet economic control systems as well.
Forbes: "At a time when intellectual property provides America's greatest worldwide successes, overturning established international copyright principles to legalize infringers is like abolishing real estate law to help out squatters." The analogy is valid, but if the writer were intellectually honest enough, he would have expressed some understanding that "real estate law" is just the natural extension of the ethnic cleansing and land divisions and grant policies that came in days before. Just as housing prices (in the Bay Area, especially) will never again be as low (relatively) as they were in the 50's, so too will "international copyright principles" become overpriced and burdensome to the culture - only its the world culture this time.
Forbes says "...technology has also given consumers powerful weapons of mass reproduction with strong potential for abuse." Certainly the "abuse" they must be speaking of is that threat that people might aquire a 'freedom from economics.' That would be terrible - and in direct contradiction to the usual dogma that spurts the virtues US-run capitalism --maybe 'centralized economic control system' might be a term that the Forbes people might appreciate, but maybe not. Certainly they might see "abuse" as something that the consumer might perpetrate upon the proprietor, rather than something that the powerful might extoll upon the meek.
Quoth Forbes: "The intellectual property issue of our time is how to balance the rights of creators and consumers." I love how the Forbes type will deliberately omit any mention of the other logical beneficiaries of copyright law -- namely inheritors, proprietors - private or corporate. Finally, Forbes proclaims: "Let's make it clear: The artists who would benefit most from Lessig's legal meddling are rip-off artists." Am I blind, or is this an echo of "you're either with us, or you're with the terrorists" ? It would certainly bode well for 'Stalinist-style capitalism' if the above Bushism were applied to global economics.
-SC
Copyright is under attack today as never before. The new technologies of the Internet allow for perfect digital copies to spread around the world within hours. Already the music industry is being decimated as net users find that they can download virtually any song ever created, without paying a penny. As technology advances, the same will be true of music, novels, art, virtually everything copyrightable.
Far from an era of overly strong copyright protection, we are entering a time when copyright will essentially cease to exist.
Well, that kind of comments is really amazing but it is true that I keep convincing people, day after day, that copyright law are not some ethereal part of human rights but, more pragmatically, a very limited economical incentive monopoly!
Keep on the good work Professor Lessig!
It's important to note that all reviews of Lessig's books are being done by people in the media (i.e. writers) who by their very occupation make their living creating original works and fixing them in a tangible medium. In other words, all writers reviewing this book, as well as Radio and TV and even internet personalities doing the same, are biased.
That they should not be biased is something they should learn from this book... but they won't simply because at the end of the day the "copying my stuff is stealing from me" meme is where their opinion on the matter is going to be coming from. In other words, for many people this is a book that argues that anyone paid to review books doesn't deserve to make money. Of course it's not, but you'd have to read the book with an open mind to discover that fact.
I think "extraordinary" is not one of the adjectives I would have chosen to describe Mr. Manes' review. But IANAL. :)
My copy of the book is on order from Amazon. Can't wait to get it.
I didn't see any comments about the Internet in this review, so I'm wondering if you're silent on that subject this time around. I hope not, because I love it when non-engineers sing the virtues of the Internet, to coin a phrase.
Not to nitpick, but, err, the Sword in the Stone, though Arthurian, was actually based on the book of same name by T.H. White, with the author getting a writing credit and, one assumes, royalties.
White also got credit for Camelot.
Saccharine as all get out, but the films did introduce a generation to Lance, Gwen and the gang.
Why arn't Lessig's books released under a Creative Commons license?
JP - He just released a free, online, complete version of the book (pdf) with a creative commons license and just posted the URL to download it from. http://www.free-culture.cc/freecontent
Lessig is no hypocrite.
Actually, Disney does not pay if it doesn't suit them. Or more properly, they don't care about 'intellectual property' if it isn't convenient to corporate goals. Check out The Lion King then compare to Kimba the White Lion, a Japanese cartoon series from the 1960s. The Disney corp made an effort to acquire the rights, yes, but when they failed they went ahead and produced the movie. Apparently Disney corporate profits are more important than 'respect for intellectual property'. The Japanese owners of the copyright were too polite to sue.
Go to http://www.kimbawlion.com/ and click the "Lion King?" button in the navigation frame.
So how is this any different from P2Per's downloading their favorite songs across the net? Oh! I know, the P2Pers aren't making any PROFIT from it. They are just enjoying the music and movies. Disney, on the other hand, is a PIRATE CORPORATION that has exploited 'intellectual property' that they did not own the rights to.
Question, does Lessig know about this? Is it in the book?
Stephen Manes is relentless in his personal flames on Lessig. I do say personal because look at what he has to say about Lessig
According to Manes in a recent review, LEssig is a "moron" who is an "intellectual bully."
Manes critices Lessig over some of the Disney movies, and then totally misses the point about how Disney would reuse public domain material to make it their own.
"In his bloggy rage after being taken to task by a mere non-lawyer," Really, where exactly did Lessig sound enraged. Really I see alot of name calling, insults and personal attacks, but guess who is dishing it out.
Stephen Manes is the real bully, and he should apologize.
bruce: Please say free-of-charge when you mean that, since the book is not free in a Stallman sense.
Peter Pan is governed by special legislation in the UK that effectively gives the owners (a hospital for sick children) immortal rights to charge royalties. Quite simply: if Walt Disney did not pay for royalties for Peter Pan in relation to products put onto the market in the UK, then it would be infringing the UK Copyright, Desgins & Patents Act 1988. This would be a good explanation for why they continue to pay for Peter Pan, but not for other works.
Since when did "intellectual" become an insult? An odd accusation to lob in a finance magazine. Are they embarking upon a new program to rid themselves of "intellectuals?"
Stephen Manes's review and redirect are obnoxious and over-the-top and filled with ad hominem argument and derision, as Forbes seems to like its articles to be. That said, however, I believe Prof. Lessig's reply is disingenuous when he states repeatedly that, "It was obvious, I thought, that...."
There is a true controversy here, and when I strip away the thick layers of insults and the bravado from Mr. Manes's argument, I find something there that makes more sense to me than what Mr. Manes claims Prof. Lessig advocates. (I use this circumlocution because I have read only part of "Free Culture" so far, and I don't accept Mr. Manes's characterization of the book at face value.)
In my opinion, both the book (what I've read so far) and the review suffer from their authors' extreme assertions about their opposites in the controversy. At this point, I discount most of Mr. Manes's review, but I am so far unconvinced that Prof. Lessig's proposal to rollback copyright law to 1975 (plus additional restrictions) is better than what we have today.
Perhaps I grossly misinterpreted your march 20th response to Stephen Manes, but I wouldn't describe your response as "blustering and bloviating", or "bloggy rage" (Forbes, April 4th, 2004). Hmmm....
If you're response can be characterized as rage, then what of Manes two articles! The ratio of argumentative premises to rhetoric and name-calling is at best 50%...Someone's upset, and it may not even be Manes, seeing as how he writes mostly about digital camera features and the like. Perhaps his editor told him to put you in your place...."Lessig is moron"? Please.
I certainly agree with you Karl. And the unfortunate thing is that it hurts Manes own argument, which has merit. For example, he essentially is arguing that putting the burden of obtaining copyrights on the author unfairly burdens creators, and "might help the big media he claims to detest by offering them the chance to poach material they once would have had to pay for" (Forbes, March 29th, 2004).
The argument here is atleast plausible. He is ignoring of course, the opposite side of the issue, that if the burden is not on creators to protect their own work, then it falls (as it does currently) on follow-on creators and innovators to seek permission, oftentimes for works that rightly, should be in the public domain.
Nevertheless, most reasonable people, in my view, would not read this article after the first few completely unnecessary paragraphs of insulting language (unless they completely believe the writers view). It damages the writers own credibility more than anything else.
Excellent Blog and Excellent Post ! Keep it Up.
Sarah William
http://www.wonderfultemplates.com
"Please say free-of-charge when you mean that, since the book is not free in a Stallman sense."
Great. Can you forward us all a copy of the Stallman dictionary, so that we can all adjust our speech accordingly?
Did Stallman slap a GPL on the English language when I wasn't looking?
Free is free. Stallman's ironic attempts to control this idea, notwithstanding.