Im November stellten wir ein Interview mit Lawrence Lessig unter der liberalsten Creative Commons Lizenz zum Remixen online. Jetzt gibt es das erste Transcript von Stefan T. Saffert, der sich die Mühe gemacht hat, alles mitzuschreiben. Ein kurzer Blick in OpenOffice zeigt fast 50000 Zeichen Text an.
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Als nächstes ist geplant, das Transcript ins deutsche zu übersetzen, eine DVD aus dem Interview zu erstellen und mit deutschen Untertiteln zu versehen. Ich bin gespannt, die Arbeit bisher ist schon grossartig – danke schonmal dafür!. Wer mithelfen möchte, kann dies z.B. durch das Übersetzen einzelner Antworten tun. Am besten Übersetzungen in den Kommentaren posten.
12 questions about creative commons answered by Lawrence Lessig
Interviewer, Rough Cut: Markus Beckedahl
Camera: Mario Behling
Assistant: Andreas Pohl
Transcript: Stefan T. Saffert
1. Larry, can you explain us: what is Creative Commons?
So, Creative Commons is a Non-Profit that was founded in 2002 with the purpose of creating free, legal tools that people could use to mark their creative work with the freedoms they intend it to carry. The reason we thought this was necessary was that the law of copyright as it was being interpreted increasingly said that all creative work automatically came stamped with an „All Rights Reserved“ rule – which technically meant for many of the uses the internet was enabling you needed to clear permission to do the most obvious things: copying or changing or sharing creative work. And we believe that many creators who were creating for the internet had a different norm, a different set of ethics that they were operating under. They wanted to make their work available, they wanted to participate in the sharing economy of creating and sharing work. So we wanted to give them a simple way to say that. In part to enable that creativity, in part just to show people that the world was not divided between these „All Rights Reserved“ â€˜extremists‘ and people who didn’t believe in intellectual property there in fact was a range of positions and some of them were very supportive of sharing while not supportive of these very strict rules that required lots of lawyers to be involved in the middle of any kind of creative work.
2. A special question we always have about Creative Commons is: you can choose between Nonâ€‘Commercial and Commercial licenses. For a start that’s a very good thing but then there’s the question of what means „commercial“ and what means „non-commercial“. Can you explain to us what the debate is about?
It’s a very hard question because… We begin by taking the internet as we find it. What I think that means is: recognizing there are communities of people that are creating and sharing their creativity who expect that their creativity will not be exploited commercially – at least not without asking permission first. So in Flickr there are millions, last time I looked it was 50 million, images that were licensed under Creative Commons licenses. The vast majority of those, two-thirds of those are licensed in a non-commercial way. By which the person means: if you are going to take my picture and put it in TIME magazine I want you to contact me and get permission from me and pay because that is a commercial use of my work and I’m just authorizing this non-commercial use. So it’s a signal, a way for somebody to say they want to be part of this sharing economy without allowing all their work to be just exploited in any commercial way imaginable.
Now there are a lot of contexts where it is hard to figure out where the line is between commercial and non-commercial. And that’s not just because we haven’t been careful enough in defining the terms. It’s because the actual practices of communities are different. What it might mean in the music context is different from what it might mean in the video context, might be different in the picture context or in the blog context. And so it is important to build upon the norms of those different communities.
So we have some guidelines which we’ll be issuing very soon that will set out some pretty clear examples on both sides. So if you take my picture and you sell it that’s easy commercial use. If you take my song and you fileshare it in a non-commercial context that’s a non-commercial use. Some pretty clear examples on both extremes and then guidelines for thinking about the cases that are hard in the middle. For example one of the most contested debates is whether people who are reposting blog entries can put advertisement around their repostings. There are some people who think: absolutely, of course, the future of the net is a future supported by advertising and if non-commercial means you can’t be part of that you can’t be part of the net. There are other people who think quite strongly that any use of advertising turns it into a commercial process. And we’re trying to develop norms to help us us separate out these two different communities and make it easy for people to signal the part they want to be a part of.
But the critical insight that really guides of how we think about this is: we’re not out there to reform how people think about their
relationship to their creativity. We’re out there to give them tools to help them express it to others in a reliable and simple way. Once there is a simple way to express it then people can begin to argue about it. If an academic put his work up and said „You can share this for non-commercial purposes“, for example an article published in a journal, I would say to this academic: „Why should it be for non-commercial purposes, why not just allow the broadest distribution possible?“ So the point is the license that gives me a way to begin to have an argument with somebody about how free the content should be. That argument about how broadly freedom should extend is the argument that every community of creativity needs to have, not just the software community.
3.If I have a band and I release MP3s under a Non-Commercial license and Sony for example wants to get in contact with me but they just found my song in a filesharing or peer-to-peer network – how do they find me?
We’ve been working on this general problem of how you mark digital objects with licenses and MP3’s an object which we solved a couple of years ago.
If the MP3 is properly marked with a Creative Commons license, that MP3
has two links in it: one is a link to a URL that is the license, like
the Non-Commercial license, and the other is a linkback to an
authenticating web page that actually authenticates the license. That
web page is set up by the band for example releasing the music.
So I should be able to go from that MP3 back to some web page to both
figure out whether in fact this is licensed in the way the person says
it’s licensed and also to discover who it is that licensed it. So
ideally Sony should be able to click through back to that page, see the
band that’s licensed this, contact the person who indicates the contact
information on that web page and say „We’d like to license this for our
So, it’s very much a part of what we’re trying to do. Not just define
the world between commercial and non-commercial – or at least enable
that definition to be real – but also enable crossover, an easy way to
get from the Non-Commercial license back to a place where somebody can
talk about commercial rights if in fact that’s what the user wants to
4. You talked about the sharing economy and Yochai Benkler for example
talks about the information on network information economy. What’s
the new thing on that economy compared to old economy?
Well, I think the really important point, regardless of then name you
use, is to recognize something once you see it is really obvious and
that is there are different economies of creativity.
Sony lives in one economy. They pay their artists, people buy their
CDs. The idea that you would go out an volunteer for Sony is a crazy
thing. Not because Sony is a bad company but because it’s a
inappropriate way to deal with a company. The idea that you would
volunteer to help Sony just doesn’t make sense. So people interact with
Sony, artists and lawyers and distributors of content and advertisers
in the traditional commercial marketplace. That marketplace produces
extraordinarily important value for the world. In lots of different
contexts it creates products that otherwise couldn’t be created and
it’s necessary and valuable and needs to be supported.
But the critical point that Benkler and others are making obvious is
that’s not the only productive economy out there. There are also
increasingly, prevalent in the context of the web, communities that are
their own economy and are producing great value. But the norms and the
ethics of those communities are different from the norms and the ethics
of the commercial economy. Thousands of people spend endless hours
making Wikipedia into this fantastic web-based resource. They do it for
free. They do the most tedious, insanely boring work for free. Why they
do that is unclear but one thing that I think is clear is that if Jimmy
Wales got the board of Wikipedia to agree they would pay editors in
Wikipedia for their edits I think you would get fewer edits in
Wikipedia not more. Because people in that community aren’t doing it
for the money, they are doing it for the love of what they’re doing.
They want to produce something great and they do it in a way that is
outside the commercial marketplace.
The point to recognize is that this also produces great value. And
rather than being dogmatic and saying: „Well, we’d rather have the
commercial economy or the sharing economy“, like extreme capitalists or
extreme communists or something like that, is to recognize that both of
these economies live together in our social life and we want both of
There are some places where it’s totally appropriate to think about the
commercial economy. When I go out to my job during the day I want to be
paid for it. The idea that my university would say „Oh, teach because
you are part of the sharing economy of knowledge“ would be ridiculous.
No, I’m only going to teach if you pay me. But on the other hand there
are other parts of my life where it’s totally inappropriate to think
about the commercial economy. I love my wife, I have relations with my
wife that are based on sharing, they are not based on money. The idea
that I would say to my best friend „Let’s have lunch and I will pay you
$ 50 if you have lunch with me“ would be a perversion of what the
nature of that relationship is. So these two kinds of economies live
within our life all the time and we need rules that encourage and
facilitate both of them to exist.
Now I think what’s most interesting, the internet economy is increasing
[???] businesses that are hybrids between these two. So think about Red
Hat, it’s the best example. Red Hat wants to make a lot of money, they
want to be the next Microsoft at least in the sense that profitable.
But they build their profit on top of a sharing economy. People who for
free produce improvements to the GNU/Linux operating system in a way
that is driven primarily by the desire of people to produce and create
and share their creativity not because they are being paid for it.
Well, the thing that Red Hat has to do is to figure out how it can
exploit, to the best sense of that word, this sharing economy without
polluting it. Because if it does it in a bad or clumsy way then people
will say „I don’t want to contribute to this GNU/Linux operating system
any more. Why should I? People are just taking my work and making money
off of it. I’ll go do something else.“ It has this delicate balance it
has to strike to be able to profit but not pollute the sharing economy
that it’s building off of.
Well, that’s the most famous example but as you begin to think of
what’s important about the net right now there are many, many, many
more examples that have really nothing to do with software any more. So
think about Second Life, this virtual community on-line, where the
programmers of Second Life originally just created a platform where if
you become a member of Second Life you go out there on these empty
fields. People spend endless amounts of time building things for this
platform – for free. They are creating value in this platform. And that
value makes Second Life more valuable for other people. So Second Life
again is trying to create this economy where people will for free
create object which make their platform more valuable so they in turn
can sell more memberships to that platform.
Think about MySpace. These kids come on and take this coding space and
they build value in it, drawing more people to it in a way that makes
the company ultimately very, very valuable. MySpace the company is
trying to profit off of this but again it can’t profit makes it so the
kids say „This is share-cropping, I’m not going to put my work in there
and get nothing in return“. So they again have to strike this balance
between the commercial and the sharing economy.
My view is, we really need to figure out what makes the sharing economy
work. That comes again from not being dogmatic and insisting there’s
only one way of looking at the world but instead being much more
catholic in our willingness to incorporate different perspectives and
learn from them. It’s an empirical question right now but if we get it
right it could produce great opportunities for value and wealth in a
traditional way of money but also in a social way of opening up
opportunities for interaction and community that before the internet
had been shut down by the traditional way the market in real space
You gave us some examples of business models but except maybe Second
Life I found it more like hybrid models. What can real sharing economy
business models be or how would they look like?
In my way of defining the world, if it’s a business model meaning a
model someone has for making money, it is by definition hybrid. So,
let’s be clear about some examples.
iTunes is not a hybrid economy. iTunes is a platform for traditional
commercial economy. The idea you would volunteer for Apple and iTunes
is silly. They are just trying to sell products or services, they are
doing it very well, they are profiting because of that. Good for them.
If what the company is trying to do is to profit by leveraging the
community, they can be doing that in a very thin way – for example
getting people to provide ratings to products which then makes it
easier for me to figure out how to buy products, that’s what Amazon
does – or a very thick way where what they are trying to do is to get
people to build communities around content, like Flickr, and rate other
people’s content which makes it easier to identify. In that case,
Flickr, that’s very much a hybrid economy because they want to make
money but they want to encourage a community.
Now on the other extreme you can have sharing economies that are just
about the sharing economy, nobody is trying to get money out of it.
Wikipedia is the best example of that right now. Wikipedia has a
constitution that really limits its ability to make money out of
itself, it is community. If all of a sudden they start putting ads up
there would be a revolt of people because it is just about the
community right now. Of course the license permits people to take that
content and do whatever they want with it – as long as they obey the
Share-Alike rules – but in some sense the community is really just
trying to build a community there.
Now I think that there’s a place for all three of these different
economies. There will be always a place for the pure commercial, there
should always be a place for the pure sharing, but there is an
increasingly important place, this thing that’s new here, for the
5. What’s wrong with copy-protection – the answer of the old economy to
the freedoms of the net?
The problems of copy-protection really requires understanding these
Look at what people are doing on the net. One thing is, they are just
consuming culture and there are lots of really effective technologies
to help them consume it better. So iTunes again is the best example.
Subscribe to iTunes, download television, watch it on your computer or
watch it on your iPod. It’s a more efficient way to get access to
television than television. I go into hotel rooms now and I think: „Why
is there that stupid thing on the wall called a television any more?“
Who would waste their time actually clicking through the 150 channels
to see if there’s something you want to watch. Of course there’s not
going to be anything you want to watch. The idea that you would
randomly be in a hotel room at a time when there’s something you would
want to watch that just came on is just crazy. Of course the more
obvious way, the more efficient way to get access to culture that I
just want to consume is to have it on my machine or be able to download
it at any time I want and watch it.
That kind of culture, which I call „read-only culture“, the internet is
enabling in a really powerful way.
But then there’s another kind of culture the internet is also enabling,
which is called „read-write“. The objective is not just to get culture
that you consume but to get culture that you consume and you have the
right to do things with and share that with others.
So again, Wikipedia does this, Flickr does this, video-sharing sites do
this. These are all companies that are in the business of not just
giving people access to culture but they are giving them access to
culture that they can do something with and share with others.
Well, this is where DRM becomes so problematic. Because whereas DRM
perfectly supports the read-only internet so find ways to wrap the
content, protect it perfectly so that I really control exactly how much
you buy and that you don’t try to use it beyond what you buy. Those
same tools lock out the opportunity for the read-write internet to
Because if I download this movie from Revver and am not able to remix
it or cut it up or reuse it in another movie I’m trying to make because
DRM blocks me then the read-write internet is undermined in order to
protect the read-only internet.
So my point is, there is an ecology here that we should be supporting
that has both of these activities – the read-only and the read-write.
And if we choose a certain tool to support the read-only we will kill
off the opportunity for the read-write.
If you choose DRM as the tool to protect the read-only economy then you
are choosing a tool that will kill off the ecology of the read-write
That’s why I think we need to think about other ways to protect the
read-only internet that doesn’t have the consequence of wiping out the
read-write internet. This is a kind of familiar insight in the context
of environmentalism. My colleague, board member of Creative Commons,
Jamie Boyle, ten years ago started writing about it in this way.
You don’t use DDT to kill a gnat – not because it’s not effective in
killing gnats. It is, it kills gnats quite effectively. But because the
consequence of using DDT to kill a gnat is it also kills off a wide
range of wild life that you don’t want to be killing off, the bald
eagle or other examples like that. So you need to pick your weapon in
light of the consequences of the weapon. You need to think about the
widest range of the environment when you start picking your weapon.
That’s one of the problems with DRM that it’s picking the read-only
culture, forgetting the read-write culture just at a time that
technology is encouraging the read-write culture to flourish in a way
it hasn’t in a 110 years.
6. The environmental movement is a nice example. Forty years ago there
were some people warning about threats to the environment and stuff
like that. Now there’s a huge movement of millions and millions of
people organized in big organizations like Greenpeace and other ones.
What can we learn from the environmental movement and what are our
pictures compared to pictures like Chernobyl or dead robes (seals)
and stuff what helped people to understand that the environmental
issue is an important issue.
One of the most important things about environmentalism was that it
made everybody recognize how they were part of the story, right. So it
wasn’t a movement that said there are good people and bad people, get
rid of the bad people and celebrate the good people. It wasn’t just a
bunch of tree-huggers out there.
The environmental movement succeeded when it got businesses to
recognize that they had an interest in the environment, too. And it got
conservatives to realize that there was a certain principle of
environmentalism that, you know, expressed certain conservative values,
so in an environmentalism context.
One of the reasons to oppose pollution translated in the language of
pure economics is the polluter is imposing a cost on society which he
hasn’t paid for. And that’s inefficient, it’s just inefficient. It’s
not morally good or bad. You can say it’s just inefficient.
And once you begin to see it like that then you can bring together
different political perspectives advancing this common goal of
regulation to preserve the environment.
That’s the same thing that has to happen in the context of what I think
is the Free Culture movement. People have to recognize there is an
environmentalism here, you know. So we’ve got to protect the
environment of read-only and read-write. They have to be able to
And we do that by getting people to recognize that this is not just a
simple political issue of left versus right. But instead there are
people on the left and the right who should be able to agree about a
general framework and begin to work out how we implement it.
So, you know, I think the equivalence to the pictures of Chernobyl, you
know, is the picture of a couch-potato, right. There is a wonderful
Apple ad from 1984 when they were launching their Macintosh which has
this image of all these people, you know, evoked from the book „1984“,
sitting before a big tele-screen, they’re sitting there as these
clones, all just watching. And that’s the image of Chernobyl for us,
for a culture. You know, the idea of all these couch-potatoes just
consuming what’s fed to them, not having any ability to interact or to
produce a creative response is the equivalent of a dead culture.
We need those images to kind of drive us to how we can built a more
participatory culture in response.
The environmental movement is a nice example. Forty years ago there
were some people warning about threats to the environment and stuff
like that. Now there’s a huge movement of millions and millions of
people organized in big organizations like Greenpeace and other ones.
7. There is also the project of Science Commons. In Germany and Europe
it isn’t popular at this time? What is the idea behind Science
Commons compared to Creative Commons?
Well, so I describe Creative Commons the same. We wanted to provide
simple tools to enable authors to mark their content with the freedoms
they intend it to carry. That’s a particular implementation of a more
general idea. The more general idea is: how can we hack the legal
system to allow people to do what they want to do but which right now,
the legal system, will inhibit them from doing. And if you take the
array of all those ways we can hack the legal system we’ve picked the
low hanging fruit first.
Well, Science Commons is trying to do that in the context of science.
The first place that they did, and it is important internationally, is
in the context of Open Access publishing. So some of the most important
Open Access journals or projects used Creative Commons licenses to mark
their published works in a way that makes them universal accessible
without barriers of wealth or access. So the Public Library of Science
is the best example of that but there are many more. They’re trying to
make it so that people regardless of their national origin or their
wealth can get access to scientific knowledge freely.
But beyond that obvious extension of Creative Commons the Science
Commons project is working on other areas where the default legal
regime inhibits the kind of research and development of people
otherwise would think they want to do.
So for example in the context of work around materials and materials
transfer projects. Here too are simple ways in which we can hack the
legal system to facilitate broader transfer of material consistent with
what the scientists want but inconsistent with how the default of
copyright or patent law functions. So we’re exploring in a lot of
different contexts ways in which we can just make the system function
better, more consistent with what the scientist wants. Not just by
copyright licenses but by other legal devices that we can deploy that
would advance the objective of researches in the context of science.
When will it came to Europe?
The Science Commons, I don’t know whether it will ever be
internationalized the way Creative Commons is internationalized but I
do think that we will have international projects.
We’ve been talking in Germany with different science organisations that
have projects they’d like to advance which fit this general model – how
can you hack the legal system to make it function better for science.
And we’re exploring, developing those projects in different places
around the world but it’s not a project that makes sense to try and
think of in like a 150 different jurisdictions. It’s more a common set
of objectives we’re trying to achieve internationally and let’s figure
out as many places in which we can advance that.
8. In Germany you have to choose as a musician if you want to be member
of the legal system GEMA or if you want to use Creative Commons. It’s
because the GEMA doesn’t really like Creative Commons at the moment.
They say that for our legal system the licenses are not comparable
because we have the composer, we have the author, we have the singer
and interpreter. What’s your answer to them.
Well, that statement isn’t true. The systems are perfectly comparable.
In the United States we have the same structure of rights. What’s
different is, that in the United States the collecting rights societies
are not exclusive and in many places in Europe they’re exclusive so you
have to make a choice as an artist to be part of the collecting rights
society or not.
I think the general problem here is that we’ve not yet come to a state
where the collecting rights societies admit something which I think
everybody when they think about it must admit. And that is that there
are places where people use culture, music, that should not be subject
to the regulation of the law, that should be free of the regulation of
My favourite example of this is a testimony that John Philip Sousa gave
in 1906 before the United States congress where he was criticising the
„talking machines“ – the „talking machines“ are going to destroy our
artistic development in music. And he romanticises this idea of the
young people together singing the songs of the day and the old songs.
That’s what he grew up with. Like young people getting together on an
afternoon or an evening just singing songs. Now in that testimony he
was asked by a member of Congress: „Well, should they pay for them?“
Because Sousa was testifying in support of strengthening intellectual
property. He was outraged at the question. Of course they shouldn’t be
paying for that. This is just use of culture by individuals that is
free of the regulation of copyright law. And he’s emphasising a point
that I think is easy for us to forget: it is important that there’d be
a use of culture free of the regulation of copyright law. And the job
of copyright law is to draw the balance between the appropriate places
for regulations and the appropriate places for freedom.
In principle the GEMA could put devices in everybody’s shower and
record what songs you sing in the shower in the morning and charge you
for that. In principle we could be taxing every single context in which
music might be performed in order to guarantee that we’re collecting
revenues every time music is actually invoked but I think a more
traditional view is to recognize that there are places where the law of
copyright is appropriate and places where it’s not. What we have to do
in the context of the internet is try to find ways to draw that line, to
distinguish between places where it’s appropriate and places where it’s
Now Creative Commons is firmly of the view that we ought to have a free
place and that we ought to have a regulated place. We ought to have a
place where peoples uses are free of the regulations of copyright law
in the effective sense and a place where it’s not free of regulation of
the copyright law. And we use devices like the Commercial and
Non-Commercial distinction or the Share Alike condition to draw that
line. So in the non-commercial space we’re saying you can freely share
this, don’t worry about paying people, just obey the non-commercial
restriction and it will be fine. But if you want to begin to perform
this publically or you want to begin to sell this you have to abide by
the commercial rights. So we believe in these two economies living
together. And I think unfortunately many collecting rights societies
believe there should be only one.
I once was at a conference where this woman was talking about the
emerging „permission society“. I use that term as a way to ridicule
what’s happening but she was celebrating it. She was talking about a
world where every single use of culture would be taxed. We would have
devices to figure out every time you hummed or every time you sang and
then you would be paying for the right to do that. In my view that’s
totalitarian. There ought to be limits to regulation of culture. We
need to recognize this.
I think more collecting rights societies need to begin to talk about
where they think the limit is because the logic of their position is
every time culture is invoked somebody ought to be paid. And if
somebody has to be paid than we have to be monitoring and policing
every time culture is invoked. And I think the perpetual spying of the
devices necessary to monitor and police every time culture is invoked
is wildly more burdensome and costly to society than just dividing
between those places where it is appropriate to be regulating and those
places that ought to be free.
I think there’s a long conversation to have with the collecting rights
societies because I think ultimately they will be in the position that
I think we already are in. We’ll be talking in common about what is the
line, where is the appropriate line. Is it when twenty kids get
together on a MySpace page? Should somebody have to be paying for that
I think we all agree if you put a song up on the web to sell for people
to download then of course you ought to be paying for that. But it’s on
the other side that we need to have a richer conversation. Those who
would simplify the story and say it’s either free for everybody, for
all contexts and all ways or people who would say you have to be paid
for every single use. Both of those simplifiers are making a
9. We have a lot of talks to Non-Governmental-Organisations about using
Creative Commons licenses. To my surprise the NGOs have much more,
they think more about control of their content than companies. Do you
have models how it can work or do you have examples about usage of CC
licenses by NGOs or what would you say to them?
Well, I think that everybody, NGOs and commercial entities and
governments, need to rethink the ethics of their behaviour in light of
the emergence of the net. NGOs are not naturally better people than
people building commercial enterprises. People I know building
commercial enterprises are some of the most decent and ethical people I
So I don’t think there is any natural difference like you have the
greedy people in commerce and good people in NGOs.
And often NGOs think that their only resource, their only asset are
these IP things that they control to profit. Museums, I think, are the
best example for this. I think it’s outrageous the way museums force
scholars for example to pay ridiculous prices, maybe 5.000 dollars, to
get a digital image of a public domain picture that they’re holding in
their museum to publish in a book that will sell no more than 500
copies or 1.000 copies. Yet they do this because they think this is a
good way to raise money to run the museum. And my response to that is:
you need to find better ways to raise money to run the museum. Because
the idea of you blocking access to this public domain work is just not
a good way to raise money to support a museum.
I’ve been having this exchange in e-mail with this guy who works for
the American Red Cross and the American Red Cross, too, has this
extremely restrictive view about information, about how to deal with
emergencies or to deal with health issues. They have these reports,
these studies that they have, that they’ve commissioned but they
exercise very strict rights over getting access to it. And I suggested
that he say to the American Red Cross: where is it in your business
model that you would block the ability of other people to save people,
too? Why is that part of what you’re trying to do to make it harder for
others to save other people?
I think if you begin to ask these questions of NGOs they begin to have
to think: what really is our interest here? Why would we block other’s
ability to get a free copy of our report about how to deal with malaria
in the developing world. What interest do we have to block the ability
of others to deal with malaria in the developing world.
I think as people ask these questions in lots of contexts we’re going
to see a different balance that’s gets struck because as they honestly
evaluate what’s consistent with our values, the values will force
people in different contexts to become more open than they are right
now. Governments the most obvious, NGOs the second most obvious.
Maybe ironically it’s businesses, commercial entities, that are actually
being the most responsive to this. Because they have a commercial
interest in getting it right and their commercial interest forces them
to change their behaviour more quickly often than what happens in the
10. You are into the debate of net neutrality in the United States. In
Germany and Europe we a bit of this discussion but not so big as in
the United States. What’s the matter with net neutrality and why is
it in danger?
It’s a hard question to answer briefly because there’s a lot of
history. But the shortest version of an answer I think goes something
The internet gets born in the United States in a context of relatively
heavy regulation in the sense that most people use their telephones to
connect to the internet, the first part of the internet. The telephone
system is regulated by the government so the telephone companies are
not permitted to discriminate against people using their telephone to
fake a computer out and dial up a modem and connect over telephone
wires. They are not able to discriminate against those people in favour
of those people who use the telephone just to talk. The government says
you have to treat these uses neutrally, the same. That forced
regulation creates the opportunity for the internet to get layered on
top of the telephone network. Not all parts of it, obviously. The
backbone is laid independently of the telephone wires but people’s last
mile ability to connect to the internet is enabled because they can
call up on the telephone.
Now ironically in many parts of Europe at the same time that this
freedom is guaranteed by regulation in the United States doesn’t exist
in many parts of Europe, and many parts of Europe for as much as the
1990s. It’s a crime to use your telephone to connect to a computer
because they want to be able to charge different prices for that and be
able to discriminate and control that application so that telephone
companies can profit off of it. But the United States sets the lead by
requiring this neutrality and that invites the growth of the internet
and the explosion of innovation on the internet.
Well, in obsession with the kind of deregulation that has taken over in
the United States for at least the last eight years. Over that period
of time in the broadband sector there has been more and more
deregulation of broadband by which that means that the providers of
that infrastructure no longer are required to behave neutrally with
respect to people who want to use or get access to that infrastructure.
So initially cable broadband is free of any regulation or how people
get access to or use broadband across cable. Since 05th August 2005 DSL
has now been set free of any regulation. So now broadband in the United
States – there’s some technical transition because of mergers – but
effectively broadband in the United states since 05th August 2005 has
been free of any regulation for neutrality.
What that means is the providers of broadband which are an increasingly
small set of companies are now free to pick and choose the content that
they will allow to flow in the broadband network. And they will pick
and choose based on what makes them the most money. So they will say to
companies that want to provide video: „OK, you want your video to come
across in a high quality way, you have to pay a certain video tax.“ Now
that’s not a problem for companies like Google but it will be a problem
for companies like BlipTV or last year YouTube. Companies that are
competing with the established companies. It will be harder for them to
be able to pay these taxes imposed on access to the internet relative
to the existing, successful companies.
So as these broadband providers layer these burdens of tax on the
network it will slow down innovation and development for the network
because it will benefit the established over the new. So what net
neutrality regulation basically tries to do is to layer a relatively
thin rule on top of the internet. It basically tries to drive broadband
providers out of business models that are focused on profiting from the
scarcity into business models that are focused on improving the access
and quality of the internet for everybody.
Because again think about incentives a broadband provider has in a
world where he is allowed to pick and choose the content that comes
across the network. So let’s say you say: „OK, we’re gonna charge a
special price for video and that price is a price that you have to pay
in order to get a high quality video across our network“. Well, as the
provider you have a couple incentives. You want to make sure that
people continue to have an incentive to pay you a special price. The
only way to have that special incentive to pay you a special price is
if the ordinary internet is no good for sending video across. If the
ordinary internet becomes really good for sending video across why
would you pay for the premium? In that context the provider has a
perverse incentive to actually keep the ordinary internet bad in order
to make the premium internet worth it. And so you no longer have the
incentive to build the fastest network you can. You have an incentive
to keep the public internet bad so that the private internet becomes
valuable. That’s exactly the kind of business model or incentive you
don’t want the providers of the internet to have because it slows the
incentive to build really fast internet.
Paradoxically Europe embraced a regulatory strategy which initially the
United States had in the 1996 Telecom Act that has forced much better
broadband competition in Europe than in the United States. And so
broadband is cheaper and faster in Europe than it is in the United
States, especially in Asia. And that, I think, is partly a response to
this regulatory strategy. You don’t need network neutrality regulation
in Europe because you actually have more substitutive regulations
achieving the same end in Europe. So Europe’s not talking about network
neutrality because you’ve got other regulations doing basically the
same thing. It’s an important issue in the United States because we
have no regulations governing our broadband provision and that means
you have a real incentive for broadband companies to play games with
how they develop the internet and contrary to the objective of economic
11. Now you are here for one year in Berlin and the German Bundestag is
now talking about reforming the European copyright directive reform.
So they do a second try to establish a UECD which is mostly based on
DMCA. If you would have the chance to talk to German politicians
what would you say to them about thinking about copyright politics?
Well I think the most important thing for politicians around the world
is to think practically about copyright rather than religiously.
There’s a kind of attitude around intellectual property which I think
is a religious attitude that thinks about intellectual property as an
end in itself. Something we should perfect or protect regardless of its
consequences for creativity or economic development. It’s as if you had
a project to promote the production of hammers never asking the
question „What are we using hammers for? What is the objective of
hammers?“. That is the question we need to ask for intellectual
property. It is a tool that societies produce in order to create
incentives for people to produce great creative work. And the test for
whether the tool is working is whether it is actually creating more
incentives or whether it is creating more burden on the creative
process. And there are many contexts in which intellectual property
right now is producing more harm than good, producing more burdens on
the opportunity for people to produce or create or spread creativity
than it’s producing incentives.
The simplest example is the practice of governments to extend the terms
of copyrights. We can have an argument about whether it ever makes
sense to extent the term of copyrights, I don’t think it ever makes
sense to extent the term of an existing copyright because the whole
purpose of copyright is to create an incentive to produce and the one
thing we know about works that have already been produced is you can’t
do anything to change the incentives to produce them, they have already
been produced. No matter what we do George Gershwin will not produce
anything more, Elvis Presley will not produce anything more. But put
that debate aside for a second.
The biggest mistake the governments have been making is they extend the
term of copyright indiscriminately. So they say: „We’re gonna change
the term from 50 years to 70 years“ for example. In Britain right now
there’s a debate about recordings to extend it from 50 years to 95
years. They want to extend it indiscriminately not asking the question
whether particular recordings that are valuable, like the work of Elvis
Presley or the Beatles, should be extended. Instead they ask the
question should we just extend the term indiscriminately. When you
extend the term indiscriminately, even though maybe two percent of that
work has a continuing commercial value, 98 percent has no continuing
commercial value. So you extend these rights without there being any
meaningful opportunity for people to clear the rights because we don’t
even know who the owners of these rights are. We can’t use this work
because of the legal burdens imposed upon it. Those legal burdens are
not creating any incentives, they are just taxing creative
opportunities without producing any incentive on the other side.
If you focused on this question in a purely instrumental way and just
ask: „Is this change in copyright law going to produce more good than
harm?“ you would never adopt that change because it’s clearly not. But
when you approach it from a religious perspective – „Should we be
protecting intellectual property?“ – then you never ask the question
about the harm because you just care about the idea of intellectual
property. That really ideological perspective I think is producing lots
of harm in the context of the internet. Because the internet is
creating all sorts of new ways to create and produce and share
creativity that were never imagined by the framers of copyright laws
from the 19th and 20th century.
Unless we think critically about how these laws are inhibiting channels
for creativity the law will kill off many of the opportunities before
they even get a chance to take off.
The single important message I think is to think pragmatically,
critically about how intellectual property law is functioning and not
as an ideologue or as a religious fanatic who has a very simple
conception of intellectual property separated from consequences.
There’s one story that I heard once from a German experience that I
think captures the whole point. There was a German professor testifying
in some hearing in the German parliamentary context and a member asked
the question: „Well, what would the consequences of this change in
intellectual property be for economic growth?“ And the German law
professor said: „Consequences are not my concern. My concern is the
idea of intellectual property.“ It’s that response that I think is
fundamentally mistaken. Never should someone promoting regulation in
that space be allowed to say consequences are not your concern. The
only concern we should have is the consequence of this regulation on
the incentives for people to create and spread knowledge. That is the
single determinant of whether things of intellectual property should
extended or not. If we adopt that single rule I think we’d have, of
course, intellectual property regulation but it would be radically
different from the kind of intellectual property regulation we have
12. Would you mind using a Share-Alike license for releasing this
I don’t mind using it, I would prefer a simple Attribution license but
that’s your freedom, too. So you may release it as you wish.