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Colbert for Law Professors

By my count, we’ve now seen three law professors “do” The Colbert Report: Neal Katyal (Georgetown), Jonathan Zittrain (Harvard), and most recently Lawrence Lessig (Stanford, but signed, sealed, and all but delivered to Harvard).  Here are the clips, in that order:

For years, law professors have wondered whether blogging is a good idea in light of anxiety over tenure and promotion. They have wondered whether blogging should count as scholarship, or as service, or as something else, or as nothing at all.

Now that we can see the opportunity here, we can ask the same questions about The Colbert Report. Should law professors go on The Colbert Report pre-tenure?

Imagine, in other words, that Lessig doesn’t have tenure. He’s published a new book, popularizing some themes that he’s been writing about in more learned scholarship. To Colbert or not to Colbert?

On the merits, I have some questions about the Lessig interview. Remix, the book that he is promoting, is linked closely to themes that animate Creative Commons — the importance of borrowing and blending in culture, intersections between volunteer and for-profit economies, and above all the proposition that authorial control is an invariable baseline. For years, via Creative Commons and otherwise, Lessig has been arguing that both authors and society are often better off when they relinquish partial control over their creative works — but that authors should be able to choose not to do so.

In the interview, though, Lessig didn’t make that point. Colbert baited him with the proposition that Colbert might remix Remix. Lessig: That’s great (so far so good). Then Colbert turned the proposition around; don’t remix Colbert, he advised (this is Colbert the character, not Colbert the Comedy Central employee). Lessig: No matter; Lessig is a joint author (of the interview? where does that come from?), so Lessig can authorize remixing without Colbert’s permission.  So there.  And the segment staggered to a close.

Isn’t the right response that if Colbert doesn’t want to authorize remixing, then Colbert doesn’t have to authorize remixing? Creative Commons is voluntary, not coercive. Authors and publishers don’t have to play in that sandbox.

Wasn’t it absolutely expected that Colbert would make this move? Isn’t the actor Colbert on record as being a righteous self-interested “pry it from my cold, dead hands” capitalist?  Lessig scored some important points, but I think that Colbert got the better of him.  Lessig and Colbert turn out to be brothers in arms, not adversaries, but Colbert played him like the latter.

Not to Colbert, then?

That’s the not-completely-serious or not-completely-silly question and answer.  Here’s the more serious topic, riffing on the same data.

Is there a time and is there a mode in which law faculty might engage in scholarship in ways other than text?  Is it possible to imagine Colbert, or The Daily Show, or something entirely different, constituting part of a scholarly portfolio?  If so, what would that look(or sound) like?