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Lessig on Fresh Air

Larry Lessig was on Fresh Air yesterday talking about his new book and the Stanford -> Harvard switch.  For diehard Lessig fans and followers (like me) there wasn’t much you haven’t already heard, but then again, it’s always interesting to listen to attempts to educate the public (well, the NPR listenership at least) in the politics of file sharing and the Copyright Term Extension Act.

I must confess that I generally enjoy just hearing Larry Lessig talk.  He has such a smooth, crisp, measured enunciation that I might even enjoy listening to him read nutritional labels.  But while Lessig touched on quite a few old and new interesting points, the highlight for me was what Terry Gross said around 17:30.  That’s when she expressed bewilderment at the dominant theory of copyright law.

Apparently, Terry Gross was unaware that the purpose of copyright is to create incentives for new works of authorship via limited-in-time monopoly rights.  Apparently, she had always thought that copyright was about giving some money to the artists that make valuable things and not ripping them off.  Lessig quickly set her straight by citing Jefferson and Madison.

But her initial reaction made me think: Perhaps part of what is wrong with copyright today is that Terry Gross — who is a creative person herself and has been talking with artists, writers, and actors practically non-stop for many years — has never managed to intuit the dominant theory of copyright.

Jessica Litman once suggested that there could be an issue here:

On a more academic level, however, the divergence between the actual law and the popular impression of it may hold a lesson for us, especially insofar as we are drawn to grand theory. When copyright scholars rely on the assumption that authors know the law under discussion, their models threaten to describe a fantasy kingdom peopled with authors who behave as no authors behave. Those models will, of course, generate improved models and counter-models, each coherent and a thing of beauty. Authors, unaffected by the improvements in the theories, will continue muddling through. There is some danger, however, that the literature will describe ever more hypothetical versions of the world. When we interpret a law that authors do not believe in through the lens of theoretical models peopled with unreal authors who know the law’s provisions and adjust their creative output accordingly, we run a risk: We may remove ourselves even further from the concrete reality in which people who create works of authorship ply their trades. As the literature discusses copyright as a means of encouraging authorship, the authors it invokes may become increasingly alien from real ones.

Jessica Litman, Copyright as Myth, 53 U. Pitt. L. Rev. 235, 247-48 (1991).  Things have not changed that much.  Paying attention to what people like Terry Gross think copyright is — rather than what lawyers think it is — is probably still a smart idea.  The perspective of the lawyers may win in court, but ideally, it should be connected to the actual practice of creative production.

Understanding popular “copynorms” can be important not just for scholars, but for businesses as well.  A couple years ago, Mark Shultz advised that if copyright law is going to really function in the online environment, it needs to be understood (and respected) by those it seeks to regulate.  The recent strategy shift by the RIAA suggests that he was right — at some point, the “lawsuit as educational device” tactic fails not just from a PR perspective, but from a business perspective as well.