An important editorial by Lessig in the Washington Post , in which he blames the advice of lawyers for the practice of â€˜sharecroppingâ€™ creators.
A significant excerpt, calling for a new approach by the legal profession:
“Upload a remix and George Lucas, and only Lucas, is free to include it on his Web site or in his next movie, with no compensation to the creator. You are not even permitted to post it on YouTube. Upload a particularly good image as part of your remix, and Lucas is free to use it commercially with no compensation to the creator. The remixer is allowed to work, but the product of his work is not his. Put in terms appropriately (for Hollywood) over the top: The remixer becomes the sharecropper of the digital age.
Lucas is of course free, subject to “fair use,” to do whatever he wants with his creative work. The law of copyright grants him an exclusive right to “derivatives”; a remix is plainly a derivative. And it’s true that no one is forcing anyone to make a remix for free.
Yet as anyone watching this industry knows, there is a deep divide between those who believe that obsessive control is the hybrid’s path to profit and those who believe that freer access will build stronger, more profitable ties. Predictably, on the Vader-side of control is often a gaggle of lawyers who continue to act as though nothing interesting has changed in copyright law since the time of John Philip Sousa. These lawyers counsel their clients that control is always better. They ridicule efforts to strike a different balance with the army of creators being called into the service of their clients. It is for the privilege of getting to remix a 30-year-old series that these new creators are told they must waive any rights of their own. They should be happy with whatever they get (especially as most of them are probably “pirates” anyway).
Lawyers never face an opening weekend. Like law professors, their advice lives largely protected from the market. They justify what they do in terms of “right and wrong,” while everyone else has to justify their work in terms of profit. They move slowly, and deliberately. If you listen carefully, sometimes you can even hear them breathe.
A decade from now, this Vaderesque advice will look as silly as the advice lawyers gave the recording industry a decade ago. New entrants, not as obsessed with total control, will generate radically more successful remix markets. The people who spend hundreds of hours creating this new work will flock to places and companies where their integrity as creators is respected. As every revolution in democratizing technologies since the beginning of time has demonstrated, victory goes to those who embrace with respect the new creators.
Hybrids are an important future of Internet growth. Businesses will have to think carefully about which terms will excite the masses to work for them for free. Competition will help define these terms. But if one more lawyer protected from the market may be permitted a prediction, I suggest sharecropping will not survive long as a successful strategy for the remixer.”