Monday, January 23, 2006


A conversation with Lawrence Lessig, Philip Linden, Hamlet Linden, and a live SL audience, continued from last week; background here. Today's entry: audience questions on fair use in parody, cultural control by media conglomerates, lack of democratic participation in online worlds, transfer of IP rights from the virtual to the real, and much more.

Hamlet Linden: First, someone named Neptune Rebel offers greetings from Kevin Werbach, apparently a mutual colleague of yours. He also asks a question about your view of fair use with regard to parody.

Lawrence Lessig: I've stolen every great idea [Werbach's] had and turned it into a book (there are still many I havent written yet.)

Calix Metropolitan [from the audience]: Sounds like IP infraction, eh?

LL: So sue me.

So copyright law gives you the right to "fair use". What is that? Who knows. It is a four factor balancing test that no one can predict up front. Meaning fair use = the right to hire a lawyer.

One supposedly clear example is parody. But that doesn't mean what you think. Parody is using someone's work to make fun of them. It is not using someone's work to make fun of someone else. So, again, a subtle complex distinction that is useless to 90% of the people who need it. The whole problem here is the law was written to make sure we'd need lawyers to interpret it. Good for people like me (I make lawyers for a living) but not for creators.

Philip Linden: This point about how if you don't really know if something is illegal, you won't do it, is SO important.

LL: Totally. Especially for venture caps. They won't invest in a law suit.

PL: Terrible so far beyond simply being job security for lawyers.

LL: And so much innovation in the Valley is lawsuit bait.

HL: Sandy Sullivan asks, "What do you think about a society where some people choose to release designs for free access and modification, and others choose to release designs with restrictions and protections in place? Each creator freely choosing?"

LL: I like that society. I think we need a place were creators choose. I have my bias about the right choice. But I don't know squat about how creators create, especially here. So let people decide, and we'll see whose works spread best. And whose work gets the most attention.

HL: Athel Richelieu asks, "Do you think that the largest American media conglomerates (Viacom, etc.) role in defining culture is superseding religion?"

LL: Nay, religion is still pretty damn dangerous. But when they [conglomerates] control the platform of life, then they (not Linden Lab) will be the gods of this space.

Think about the story from MySpace. Owned by Murdoch. When people would chat in MySpace about YouTube (which is a very very cool video site), the machine would block the chats. That's "freedom" in Murdoch land.

PL: Funny, I don't feel free.

HL: Justice Soothsayer asks, "As the author of Code and Other Laws of Cyberspace, could you speak for a bit about Second Life, where the world is made for us by the 'coders', that is, the people who create this 'world'. What place does democracy and the rule of law have in such a world?"

LL: Please, tell me. The most interesting thing about the many worlds that are out there is that none really have a vigorous democracy. Maybe that's good. Maybe the market is enough of a check. But it is funny that so few have developed this part of life. Maybe that's because we are all so turned off by politics and government and "democracy." It is the one true religious ideal we all have, yet like most religion, we don't really believe it.

PL: There is a passion here in Second Life... to bypass "representation" in the democratic process. I think that drives much of the negative sentiment, appropriately.

LL: Yeah. What's so funny is how much we hate politicians, and how completely they miss that fact.

HL: Csven Concord asks, "What are your thoughts on the interchangeability of tangibility; when real world products are treated the same as current media-- digitized, shared online and then fabricated by individuals at home?"

LL: So if you mean, when something gets created here, and then gets reproduced in real space. Is that what you mean? Well, let's assume that's the question. I think it's fanstastic. People separate these worlds too much. We need good examples about how they're linked.

HL: Nathan Welch asks, "With new so-called 'personal fabrication' devices, most people could produce real products cheaply in their own homes. Plans to build them could be exchanged online. What [Creative] Commons-minded projects would you advocate in this upcoming field?"

LL: Complex ones. The thing strict IP does poorly is complex work. Coding, e.g., gnu/gpl, Linux, or building complicated biotech stuff. So use the Commons for what it's good for-- collaboration. Think Wikipedia.

Lessig notices the setting sun.

Man, it gets dark fast.

PL: Four hour day! Everything is faster here.

LL: Except my typing.

HL: TonyRockyHorror Hauptmann asks, "What happens when something that person A creates in-world free of protection is taken out of world by person B and then uses outdated law to then protect it out [of] game world?"

LL: Well here's the point about there not really being two worlds here. If I create something, and then you take it and exploit it, you're violating my IP (assuming its protected) unless I've authorized you to. So B would have to exploit it on terms I approve, or B's violating my rights.

HL: Forseti Svarog asks, "Lawrence said he had no idea what the term for IP protection should be. Isn't having a concrete position necessary to get credibility from opponents who think the other side is just about creative theft?"

LL: Could be. But not in the argument we had in Eldred. In Eldred, the question was whether Congress could EXTEND an existing term.

Here's why that makes no sense.

Copyright is about creating incentives. Incentives are prospective. No matter what even the US Congress does, it will not give Elvis any more incentive to create in 1954. So whatever the length of copyright should be prospectively. We know it can make no sense of incentives to extend the term for work that is already created.

Second point. I was talking about in-world IP. In real space, I'm fairly confident the term is already way too long. In the Eldred case, we argued that the current term gave a copyright owner 99.98% of the value of a perpetual term. Justice Breyer corrected me. He said it was 99.99996% of a perpetual term.
Too long.

HL: Dear Leader asks, "Why is it that you want individual creators in Second Life to have copyright, and celebrate that, but you condemn MySpace for wanting to preserve copyright, or other corporations-- isn't there a contradiction here?"

LL: I condemned a decision by programmers of MySpace to interfere with the words of its members. That's the only criticism.

EZ Rawley [from the audience]: Aren't virtual worlds by definition not fixed tangible forms, which is what IP law covers?

LL: No, virtual worlds certainly would create work that is covered by IP. Fixed and tangible enough.

PL: There must be a balance... time to create value for a person, but still maximize value for a society.

LL: Yes. That's the balance.

Dear Leader [from the audience]: Isn't always ascribing social missions to creativity itself a form of oppression, Philip?

HL: Rob Bukowski asks, "Do you think legal binding contracts could ever work in a virtual world such as Second Life?"

LL: They could. Question is whether you want them. This is the same question about whether you want code or norms to regulate behavior. If you coded contracts here, so they forced things to happen the way promised, that would be very efficient for some things...

PL: And do we want them globally (made in Linden Lab code), or locally (made in scripts)?

LL: ... but it might ruin other things. E.G., if I promise you we'll have lunch tomorrow, and then change my mind, it would be an awful world if you could then sue me for breach of contract. Some things ought to be left to people to work out, without the law.

Regarding Philip's question-- if anywhere, start locally.

PL: Totally agree.

HL: VonKorf Schnook asks, "In Free Culture you wrote: 'But just as a free market is perverted if its property becomes feudal...' Second Life is feudal at its core-- see all the Linden dynasties around-- how can culture be free here, where private property creates feudal structures?"

LL: So I meant something different. The sense of feudal was that you couldn't really free the property of certain burdens. So the laws at the time, for example, made it impossible to sell the land outside the family, and so on. In Free Culture, I was thinking of a specific kind of contrast.

PL: Right... your choices here are your own, regardless of the Lindens, etc.

LL: Imagine in real space, if you bought a table, and decided after a month to move it from your living room into your office. But before you could do that, you had to call the maker of the table and ask permission. And they would ask-- so, what computer will you use on it, because we have an exclusive with Apple, or what books will be near it, because Penguin is our publisher. Well, that's just what the rules are like with copyright.

You buy a CD by Sting. You want to use it in a particular way. You want to remix it, and share that with your friends. You can't, according to the law, unless you get Sting's permission. Trust me, he doesn't answer his e-mail.

HL: Gwyneth Llewelyn asks, "In the software industry, open source software can be released by a company for a profit, since they are able to provide services with the software. Now how can a writer make a living from a book they set in the public domain?"

LL: Turns out, surprisingly, in lots of ways. E.g., in South Africa, there is a research council called something long and too hard to type. They had about 200 researchers in 15 different programs. They wrote books, which they then sold. In 2001, they decided to stop publishing books by default. Instead, they published everything for free in electronic form. And then they sold print-on-demand books to anyone who wanted. In 2005, they evaluated the effect of this.

Remember: before, they sold everything. Now they gave everything away for free.

Consequence-- book sales had gone up by 300%, for obvious reasons. More people knew about the work and most people (in real space, at least) don't want to read a book on a computer. So making it free made it easier to sell books. I don't think that works always, but it does work for some. And all I argue for is the right of creators to make that choice

HL: Dana Bergson asks, "Philip was talking about how he wants to further the fast development of Second Life by giving sensible IP rights to Residents, while real life copyrights strangle growth in real life. But how would it be possible to de-couple IP in SL and RL? Both are heavily intertwined. This is no country with its own laws."

LL: Sure. You could have rules for how stuff created here gets used here. What freedoms members of this community have, at least when here. And in principle, you could even have rules that controlled how people's IP created here would be governed in real space. That's totally possible.

PL: And perhaps common law would help us there. A few decisions recognizing that things were logically distinct, or different here than in real life.

HL: Daniel Terdiman from CNET is in the office here at Linden Lab and he has a question: "I wonder if he's familiar with Marvel v. NCSoft and if so, what he thinks of the idea of restricting the kinds of characters players can create. And also, how much of a chill on free content creation is it to have a settlement between those parties that doesn't reveal what the terms are?"

LL: I know the case. It is a perfect example of the insanity of these laws. People ought to be able to create. The idea that Marvel owns these characters in every use they might have is wrong. IT is just this kind of limit that we need the law to craft. And yes, it is bad we don't know the settlement, but the settlement wouldn't control the law. We need some good common law cases to describe the freedom here so others can build on it.

On my blog there's a fantastic link to a .mov about characters being quashed in-world by real space lawyers. Very funny.

PL: I LOVED that video on your site, Lawrence. The movie really wraps it all up.

HL: Philip needs to roll from the restaurant [he's logging into SL from in Austin, TX] so I wanted to give him time to say a few words before he exits, and I'll continue on.

PL: Well... there is so much to talk about. But the waitress is hovering near our strange little table. And the wi-fi goes not much past the door, I assume.

I really hope that as Second Life grows, we are able to get more time with Lawrence to help us think through all these opportunities. I hope to be able to trade strange stories of this new world for a bit of his time.

LL: I would really love that. Finally to work on problems where we could make some progress.

PL: We have a chance, if we make the right decisions. to be a place that really matters and moves forward fast. Thanks so much for having me here. And please continue on! Take care everyone!

To scattered applause, Philip Linden exits the world in a poof of smoke.

Urizenus Sklar [from the audience]: I thought he would never leave!

Continued tomorrow...

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I'm so glad you've really tidied this up, Ham. I was attempting to read an unedited, earlier copy of the transcript, but it didn't flow for me so even after completing it, I sat it out. This makes it a lot more accessible!

Posted by: Torley Linden at Jan 22, 2006 9:32:27 PM

I disagree Lessig concerning why there are so few democratic systems in virtual worlds or communities. The reason there is no drive for a democratic system is because there is no power in those systems. The moment there is you will see some electoral process of some form crop up. This applies universally, not just to 2nd life. If you look at real world social groups that have some form of influence (the World Economic Forum come to mind, maybe certain sororities, I'm sure there are better examples) you will find a push for some check on that power.

I think 2nd life will see this as its influence or wealth increase.

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