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Sunday, October 26, 2008


Can I Remix Lessig's 'Remix'?

Book Review: Remix: Making Art and Commerce Thrive in the Hybrid Economy, Lawrence Lessig (2008, The Penguin Press, USA).

While we all know the old adage to not judge a book by its cover, the cover of Remix is probably the best of Lessig's tomes to date, an attractive blending of pink and blue circles to create purple. So when I sat down on Thursday night with my white dust-jacketed hard-cover copy and opened up to the Tiffany-blue inside cover, I was a little surprised by what I read. The first line of the dust-jacket blurb states that "The author of Free Culture shows how we harm our children...". Snippets of The Simpson character Helen Lovejoy's recurring shriek came to mind, "Won't somebody please think of the children!" Perhaps this is an unfair comparison, but I admit I was a little perturbed by Lessig's framing his argument in such a way.

Still, I soldiered on with Remix and, overall, I was impressed by Lessig's latest contribution. Lessig frames his text in terms of the development of 'Read Only' culture, which dominated the 20th century and 'Read/Write' culture, which we are experiencing the beginnings of now, particularly with regard to user-generated content. As with his previous texts, Lessig draws on a number of examples to illustrate why we need to create a 'hybrid' economy that draws upon both the commercial and sharing economies. For the most part, Lessig is quite persuasive in his argument and, as always, writes in a non-legalistic way that many can understand.

Yet there are a few things that to me lessened the impact of the book. My criticisms of Remix are basically two-fold, and these won't bother everyone. The first is - and you can criticise me for stating this - the essentially all-American focus. Lessig talks about how we are damaging 'our children', when clearly this is really 'our children in the western world with access to a computer'. This may seem an unfair criticism; not every book needs to address the disparity between developed and developing countries and Internet access, but Lessig does not even acknowledge this point. This is a particular shame given that Creative Commons licences are now being ported to many different jurisdictions and it would have been a good opportunity to show how the concept of 'remix' works in these jurisdictions. Perhaps Lessig might address this in the future.

The All-American focus also bothered me with regard to Lessig's recommendations for legal reform. Again, Lessig pioneers the, 'let's make copyright an opt-in system and reduce the length of protection' position. Let me say this once and for all, to all those Americans out there who have made the same or similar points: THE BERNE CONVENTION EXISTS. I'm sorry. I didn't mean to do the keyboard equivalent of yelling. But I imagine my future thesis examiners will not be impressed if I make a number of suggestions for reform that completely ignore the reality of Australia's international obligations. The Berne Convention dictates a certain period of protection for works and other subject matter and, in fact, the United States has extended its protection beyond that minimum (and indeed made Australia do the same). Suggestions for reform that ignore these obligations are essentially useless. We need to start thinking about reforms that work within the current system and, admittedly, Lessig does so, for example, by suggesting a simplification of current copyright law. But choosing to ignore the reality of international obligations lessens the impact of those other suggestions, unless Lessig is willing to address this issue at an international level.

My second point is that I think Lessig needs to reconsider who his target audience is. Lessig writes about the impact of blogs; he writes about Wikipedia; he writes about YouTube, Amazon, Google, Flickr. The trouble is the people who will read Remix and ordered his book as quickly as I did, will be individuals who blog; have edited Wikipedia; shopped on; and use Google, YouTube, and Flickr. They may have some legal knowledge (at the very least a brush with copyright law). They will probably also be American, actually.

Thus the majority of Lessig's readers, particularly those who buy the first run of Remix, probably know as much about his modern examples as he does. In fact, Lessig himself has encouraged this, by creating wikis for his books that his readers can directly contribute to. So there is no reason any more to re-write the details of Wikipedia's birth. Benkler has done it. Zittrain has done it. Lessig has done it. Even I have done it. Let there be no more, please.

This may seem a harsh criticism, and certainly there will be people who read Remix and this is their first brush with such a brave new world. But if you are reading this review, then you probably know a reasonable amount about this area anyway, and can probably see where I am coming from.

Despite these criticisms, as I said before overall I did enjoy Remix...and, in the spirit of the hybrid economy that Lessig writes about, I look forward to contributing to the Remix wiki, and not receiving any payment for that.

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Wednesday, October 10, 2007


The Many Non-American Faces of the Public Domain

Book Review: 'Intellectual Property: The Many Faces of the Public Domain'
Edited by Charlotte Waelde and Hector MacQueen
(2007, Edward Elgar, UK)

In the growing body of scholarship on the public domain in copyright law, it seems as though many articles contain the same footnote. It will be early on the article or chapter and will feature names that any public domain scholar, from any jurisdiction, will recognise as easily as they would the name ‘George W. Bush’. Those names will include (and, although I’m writing this off the top of my head, this is probably the exact order that these names would appear): David Lange, Jessica Litman, Edward Samuels, Keith Aoki, Yochai Benkler, Lawrence Lessig, James Boyle, Pamela Samuelson. Occasionally there will be some variation: an author will recognise an earlier work, or a work in the middle, and a few names afterwards. My own work usually features such a footnote, although my thesis explores the public domain musings of each of these scholars in greater detail.

The Waelde and MacQueen edited book, Intellectual Property: The Many Faces of Public Domain, does not feature any of these ‘usual suspects’. Instead, the authors of the many chapters in this book contribute to public domain literature with a number of new, non-United States perspectives that undoubtedly ‘enrich’ (to use a term of Pamela Samuelson’s) the growing body of scholarship on this concept. There is no great emphasis on the United States copyright clause or First Amendment here. That is not to underestimate the quality or impact of public domain scholarship on those American issues; in fact, in seeking to explore constitutional aspects of the Australian public domain this literature has been invaluable. However, as many public domain scholars have noted, there are numerous public domains and the various contributors in this edition each construct this concept in very different ways and contexts.

Indeed, the chapters provide numerous perspectives and views of the public domain, ranging from the historical or theoretical, to the much more practical. F. Willem Grosheide’s chapter “In Search of the Public Domain During the Prehistory of Copyright Law” provides an interesting historical introduction to the edition, while in “Copyright’s Public Domain” Ronan Deazley dives head first into the basics of constructing the public domain, and in the tradition of Pamela Samuelson, provides a number of useful illustrations (given the number of issues and constructions that can be raised in public domain literature, I would say that the more illustrations, the better). John Cahir also raises a particularly topical question in his chapter, “The Public Domain: Right or Liberty”: is there a right to the public domain? Such a question and, indeed, many of the issues raised in this book arguably warrant a book/thesis/number of volumes of their own.

Other chapters build on recurring themes in public domain discourse. In his chapter, “The Public Domain and the Creative Author”, Bill Thompson reflects on the public domain, creativity, culture and authorship (and manages to reference Leonardo DiCaprio, Star Trek, The Simpsons, Hamlet and Moby Dick among others in the one chapter- excellent work). Further Johanna Gibson’s chapter “Audiences in Tradition: Traditional Knowledge and the Public Domain” discusses a number of recurring issues regarding the interrelationship between traditional knowledge and the public domain, while also raising the often-neglected question of who constitutes the ‘public’ in these types of discussions.

These are only a sample of chapters in this book; but it should be apparent to the reader that the chapters in Intellectual Property: The Many Faces of the Public Domain encapsulate a number of public domain issues, some new, some recurring. For any public domain or copyright scholar, this is a must-have book; or, even for those who are not so familiar with these issues, the various contributors raise a number of thought-provoking intellectual property issues. I would like to conclude with a quote from Bill Thompson (not regarding Leonardo DiCaprio). He states that (at p. 132):

“The public domain is little understood, rarely defended in the public prints
and under constant attack from those who would have all works of the human
imagination kept under lock and key through a combination of perpetual copyright
and technological protection measures. Even while it persists it is often
hard to determine whether a particular piece of work is in the public domain,
and since the rules differ in different jurisdictions the status of all but the
most obvious – for which read ‘older’ - works must often be considered
questionable.” (citations omitted)

The same is true of the Australian situation. Books such as Intellectual Property: The Many Faces of the Public Domain make us realise these issues, with a view to exploring their implication at a national and international, online and offline, level.

(Next up - a review of 'Digital Copyright and the Consumer Revolution: Hands off my iPod', by Dr. Matthew Rimmer, ANU College of Law)

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Friday, August 10, 2007


The Devil Wears Prada, For Nerds

Book Review: Andrew Keen, ‘The Cult of the Amateur: How Today’s Internet Is Killing Our Culture and Assaulting Our Economy’ (2007)

Andrew Keen has been described by one UK technology journalist as being the possible “Martin Luther” of the Internet counter-reformation. Yet that statement, like the majority of the content in Keen’s recently released book, The Cult of the Amateur, is over-exaggerated. If Keen is to be believed, then the end of culture is nigh and the Internet, Web 2.0, bloggers, noble amateurs, YouTube, Jimmy Wales, MySpace, lonelygirl15, Google, and Wikipedia, are to blame. To Keen, Web 2.0 is a classic example of the “infinite monkey theorem”, where, if you put unlimited monkeys in front of unlimited typewriters, one of the monkeys will eventually produce Hamlet. On the Internet, everyone is a monkey, except, of course, Keen.

Keen ‘confesses’ early on in the book that he pursued the dotcom dream, and that he is “an insider now on the outside who has poured out his cup of Kool-Aid and resigned his membership from the cult” (pp. 11-12). These experiences make him different from the average Internet-user. Over the next 200 pages, Keen provides the reader with colourful, creative, you’ve-probably-heard-them-somewhere-before examples of why Web 2.0 will be the death of creativity and culture. The majority of these examples are, perhaps not surprisingly and disappointingly, United States-focussed. According to Keen, although the Internet has been praised for its democratic underpinnings and the fact that anyone can create their very own Hyde Park soap-box, these features are resulting in the depreciation of the importance and value of ‘experts’ and the impact of traditional media outlets.

I don’t have the time, or the inclination, to tackle everything in The Cult of the Amateur, so I just want to highlight one point. One of the issues that Keen finds most bothersome about Web 2.0 is the fact that individuals are able to remain anonymous, and therefore they will not be held accountable for what they say. Aliases, therefore, are just plain wrong. Keen states that

“Some argue that Web 2.0, and the blogosphere in particular, represents a return
to the vibrant democratic intellectual culture of the eighteen-century London
coffeehouse. But Samuel Johnson, Edmund Burke, and James Boswell didn’t hide
behind aliases by debating one another.” (at p. 80)
This is true, but in a number of other cases, individuals have used aliases, or pen names, and no one has thought the less of them for doing so. George Eliot is a classic example; Mary Ann Evans knew that it was unlikely her novels would be taken seriously if publishers or readers knew she was a women, so she chose to publish her novels under an alias instead. Similarly, Emily Bronte, who penned arguably one of the most important novels in English literature, also wrote under the name Ellis Bell. Keen spends the majority of the novel espousing the traditional means of cultural creation but, until very recently, many women were forced to use an alias in order to be considered the equivalent of their male peers in this dominant system. Further, throughout The Cult of the Amateur, Keen repeatedly refers to the dystopian nightmare that exists in the fictional novel Nineteen Eighty-Four, by George Orwell. But Keen fails to point out that Orwell was in fact an alias, a pen name for Eric Arthur Blair.

It is understandable that, on the Internet, an individual may not feel comfortable publicising their name and therefore chooses to use an alias. It is also a shame that individuals use aliases when they are encouraging non-legitimate conduct (for example, defaming another individual). Most importantly, however, let’s remember that aliases are not an Internet-based phenomenon.

There is more that could be said about The Cult of the Amateur: somebody needs to defend Jimmy Wales, and explain why people lie about their age offline too, just like lonelygirl15. However, in conclusion, if you don’t like what Keen is saying about your web, Web 2.0, don’t get mad: get blogging. One day one of us bloggers is bound to stumble into saying something brilliant! Now, where have Pigsy and Sandy gone....?

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