conference in 2004,
Mashing is so easy. It takes years to learn how to play the guitar and write your own songs. It takes a few weeks of practice with a turntable to make people dance and smile. It takes a few hours to crank out something good with some software. So with such a low barrier to entry, everyone jumps in and starts immediately being creative[63].
But third, and directly relevant to the story of this chapter, to the extent this creativity finds its expression on the Net, it is now subject to the regulation of copyright law. To the extent it uses others’ creativity, it needs the permission of others. To the extent it builds upon the creativity of others, it needs to be sure that that creativity can be built upon legally. A whole system of regulation has now been grafted upon an economy of creativity that until now has never known regulation. Amateur culture, or bottom up culture, or the culture that lives outside of commercial transactions — all of this is subject to regulation in a way that 30 years ago it was not.
A recent example of this conflict makes the point very concisely. There’s a genre of digital creativity called Anime Music Videos (AMVs). AMVs are remixes of anime cartoons and music. Kids spend hundreds, sometimes thousands of hours reediting the anime cartoons to match them perfectly to music. The result is, in a word, extraordinary. It is among the most creative uses of digital technology that I have seen.
While this genre of creativity is not small, it’s also not huge. Basically one site dominates activity around AMVs. That site has more than 500,000 members, and some 30,000 creators upload AMV content to the site.
In November 2005, one prominent record label, Wind-Up Records, informed this website that it wanted all Wind-Up Records artists removed from the site. That was some 3,000 videos, representing at least 250,000 hours of volunteer work by creators across the world — work that would have just one real effect: to promote the underlying artists’ work.
From the perspective of the law as it is, this is an easy case. What the kids are doing is making a derivative work of the anime; they are distributing full copies of the underlying music; and they are synchronizing the music to video — all without the permission of the copyright owners.
But from the perspective of culture, this should be a very hard case. The creativity demonstrated by this work is extraordinary. I can’t show you that creativity in a book, but the notes point you to an example that you can see[64]. It is noncommercial, amateur creative work — precisely the sort that has never been subject to the regulation of the law, but which now, because it is living in digital context, is monitored, and regulated, by the law.
Here again, I have strong feelings about what the right answer should be. But we should recognize the latent ambiguity this conflict presents:
Because of the changes in digital technology, it is now possible for the law to regulate every single use of creative work in a digital environment. As life increasingly moves into a digital environment, this means that the law will regulate more and more of the use of culture.
Is this consistent with our values?
The answer again could be found first by trying to translate framing values into the current context. From that perspective, it would be extraordinarily difficult to imagine that the framing vision would have included the level of legal regulation that the current regime entails.
Again, that conclusion could be questioned by recognizing that the possibility of such extensive regulation didn’t exist, and so the choice about whether such extensive regulation should be allowed wasn’t made. That choice, when made, should recognize that while there is extensive and new regulation of amateur culture, that regulation creates new wealth for professional culture. There’s a choice to be made about which form of culture we should protect. That choice has not yet been made directly. It is one more choice we have yet to make.
The Problems That Perfection Makes
These three examples reveal a common pattern — one that will reach far beyond copyright. At one time we enjoyed a certain kind of liberty. But that liberty was not directly chosen; it was a liberty resulting from the high costs of control[65]. That was the conclusion we drew about fair use — that when the cost of control was high, the space for fair use was great. So too with anonymous reading: We read anonymously in real space not so much because laws protect that right as because the cost of tracking what we read is so great. And it was the same with amateur culture: That flourished free of regulation because regulation could not easily reach it.
When costs of control fall, however, liberty is threatened. That threat requires a choice — do we allow the erosion of an earlier liberty, or do we erect other limits to re-create that original liberty?
The law of intellectual property is the first example of this general point. As the architecture of the Internet changes, it will allow for a greater protection of intellectual property than real-space architectures allowed; this greater protection will force a choice on us that we do not need to make in real space. Should the architecture allow perfect control over intellectual property, or should we build into the architecture an incompleteness that guarantees a certain aspect of public use or a certain space for individual freedom?
Ignoring these questions will not make them go away. Pretending that the framers answered them is no solution either. In this context (and this is just the first) we will need to make a judgment about which values the architecture will protect.
Choices
I’ve argued that cyberspace will open up three important choices in the context of intellectual property: whether to allow intellectual property in effect to become completely propertized (for that is what a perfect code regime for protecting intellectual property would do); and whether to allow this regime to erase the anonymity latent in less efficient architectures of control; and whether to allow the expansion of intellectual property to drive out amateur culture. These choices were not made by our framers. They are for us to make now.
I have a view, in this context as in the following three, about how we should exercise that choice. But I am a lawyer. Lawyers are taught to point elsewhere — to the framers, to the United Nations charter, to an act of Congress — when arguing about how things ought to be. Having said that there is no such authority here, I feel as if I ought to be silent.
Cowardly, not silent, however, is how others might see it. They say that I should say what I think. So in
