EXIF and Beyond: Lawrence Lessig Interview – Transcripts Now Available

Thanks to Pods In Print a transcript of my EXIF and Beyond podcast interview with Lawrence Lessig is now available and can be read below. I’ve received some great feedback regarding the interview, but I am also aware that listening to the discussion can be challenging due to volume variations, length of the discussion and complexity of the discussion topics.  My hope is that the transcript will bring this important discussion on copyrights and Creative Commons to a new audience and make it easier to reference key points for future discussions on this topic.

Thank again to Pods In Print and their selecting this podcast as their Pods In Print Editor’s Pick.

— begin of transcript —

Jim Goldstein
Hello.  I’m Jim Goldstein and welcome to EXIF and Beyond, a podcast dedicated to the forethought, afterthought and everything in between regarding photography.

As photography sharing services such as Flickr expand, popularity of blogging grows, social-networking sites and user-generated content such as YouTube videos become more deeply intertwined in our Internet culture, many photographers are finding themselves at the crossroads of shifting expectations by viewers and publishers alike in regard to online imagery.  As these expectations shift, copyright disputes are surfacing at a greater frequency and new licensing tools such as Creative Commons are becoming more widely adopted.

This episode features an interview with Stanford Law Professor Lawrence Lessig, co-director of the law school Center for Internet and Society, author of “Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity” and founder of Creative Commons.  In this conversation Professor Lessig, with a focus on photography, discusses the purpose and objective of Creative Commons, his perspective on copyright law, addresses the question “How if at all the adoption of Creative Commons is hurting photographers?” and shares more information about the recently announced Creative Commons+ license.

Whether you take photos, incorporate photographs in your blogs or videos, serve up or develop photos for web-based applications or just enjoy viewing photography, this discussion should be an eye-opener regarding copyright law, licensing and ongoing trends and challenges we all face as we adapt to publishing via the Internet.

As of late I started blogging and hearing and following you more and more about Creative Commons and some of the developments that have been happening in this area and there’s a lot going on that are impacting photographers, in addition to other creative types whether they are musicians or whatnot, and I wanted to thank you first and foremost for taking the time to meet with me.

Lawrence Lessig
My pleasure.

Jim Goldstein
And of course, I wanted to wish you and Creative Commons organization a Happy Birthday.

Lawrence Lessig
Thank you.

Jim Goldstein
Just turned five.

Lawrence Lessig
Yeah.

Jim Goldstein
And I wanted to give you an opportunity to kind of talk to Creative Commons in the light of photography as the – the content type and I was hoping that you might be able to give people a description of what Creative Commons is and its purpose.

Lawrence Lessig
Well the basic idea behind Creative Commons was to give creators a simple way to mark their creative work with the freedoms they intend it to carry.  So, the default of copyright is that the work carries no freedoms, you need to ask permission from the copyright owner for anything outside of the scope of fair use.  We just wanted to give people tools in a standard way that made it simpler to say, “Well, these uses I am happy, you can do without contacting me, but the – but other uses, you need to contact me first.”  So it was really a way to make it simpler for the copyrights to be respected and we thought that necessary because in a digital context basically every use of the creative work triggers copyright law and if every trigger required a copyright lawyer to be involved nothing legal or creative would be able to be done.

Jim Goldstein
And I wanted to go back to the very basics of where Creative Commons came from.  Do you feel that most people are up to speed, up to snuff with being able to understand the intricacies of copyright law?

Lawrence Lessig
[3:21] Absolutely not.  I mean, here is the fundamental design flaw of the copyright system.  It was architected imagining that it would be implemented by about 150 lawyers around the United States who would be living in relatively large institutions and able to manage the intricacies of the system. And because of digital technologies this extremely arcane, complicated system of regulation now gets extended to everybody who wants to express themselves using creative work.

Now ideally, in response to this change, we would go back to the drawing boards and try to craft a copyright law that make sense of these technologies, that made it understandable for ordinary people, that made it usable by ordinary people.  But of course, Congress is not in a position where it’s thinking like that about copyright law.  It thinks it needs to make copyright law ever more punitive so as to prevent uses that seem to threaten the primary content industry.

So instead what we thought had to happen was we find tools that make it simpler for people to negotiate the copyright system, given the fact that the copyright system is not going to function.  So I like to think about it as kind of, you remember the GUI interface that Microsoft introduced on top of DOS to kind of make that command line interface understandable by more people or usable by more people.  For some people it’s – that’s a better way of interacting with the operating system, but for geeks or real experts they prefer the command line system over this GUI interface.

Jim Goldstein
Does Creative Commons over-simplify the licenses and does that in effect sometimes create issues that kind of are a detriment to the purpose?  Have you seen that or heard about that in any way?

Lawrence Lessig
Well again if we start with the baseline of copyright law and you say that your objective is to enable people to use your creative work, if that’s not your objective then you shouldn’t be using our licenses, and if it’s not your objective then the simple thing for you to do is say all rights reserved, contact me, or have your lawyer contact my lawyer, if you want somebody to use my work.  But if you have the objective of making your work shareable then I think the comparison is between everybody sitting down and crafting their own copyright license that they attach to their content on the web, forcing people who want to use creative work to go through and read these essentially incomprehensible licenses before they use any work and the architecture of Creative Commons which is trying to build standard understandings around certain uses.  I think the Creative Commons method is a safer way to deal with these issues than the idea of everybody writing their own licenses.

Though remember, Creative Commons licenses come in three layers.  They are all intricately tied together.  The first is the machine-readable expression of the freedoms associated with the content.  That has no legal force, that’s just a way to identify content on the basis of certain freedoms.  The second, the commons deed which tries to make understandable in ordinary plain language what the license is doing.  Again, itself is not a license, it’s just saying, here is what this license is trying to do. And then third the license which is written by lawyers for lawyers intended to be interpreted in a context of legal licenses which is arcane to the ordinary English speaker but arcane because that’s the way it needs to be to fit within the legal system.

That third layer, you know, again has ambiguity if you are not a lawyer, it’s not going to be clear – perfectly clear. But in a world where we are demanding that people license in order to speak, I am not sure what more one can do than try to build this understanding around an infrastructure that tries to simplify what is admittedly an overly complex area of law.

Jim Goldstein
I am kind of curious if you’d give a little bit of context and background to what inspired the creation of Creative Commons?  Because I am not sure that most photographers are aware of that.

Lawrence Lessig
[7:28] Yeah so, about seven years ago, a couple of us, Hal Abelson, Jamie Boyle, Eric Eldred and I, were kind of brainstorming around what we saw was going to be a kind of perfect storm of copyright.  Because on the one hand, copyright law says every use of creative work triggers – in a digital context, triggers copyright, because every use produces a copy.  And on the other hand, copyright law says any trigger of copyright requires the user to either get permission from the copyright owner or renders the user an infringer of copyright unless fair use excuses them. And what we knew about fair use was it was extremely complicated to understand whether something is fair use or not and so that’s not a real solution to the problem.

So we have digital technologies that trigger copyright law whenever anybody uses something. We have copyright law that requires licenses in order to use stuff when copyright law has been triggered. And we have an explosion of technologies that’s going to invite millions of people to become creators and re-users and re-mixers of other people’s content.

So unless something changed in that mix, there was going to be a perfect storm for copyright law in creativity because either everybody would be creating against copyright law, because these permissions would not secured, or the law would come in and try to shut down all of these efforts of creativity or sharing that didn’t have express copyright law licenses attached to them. And both outcomes would be bad in our view because though not many people in content industry hear this, I am a fundamental believer in the necessity of copyright law. I think that copyright law is an essential part of the creative mix and the opportunities for creators. And what I am fighting is both a kind of extremism that makes copyright law no longer meaningful to most people and abolitionism, there is a huge movement now of people who just want to abolish copyright law saying, “We shouldn’t be handing out these government monopolies at all.”

I think both extremes are wrong.  So when we saw this perfect storm on the horizon, we said we’ve got to build something that makes it possible to negotiate this mess that’s created by the conflict between the architecture of copyright law and the architecture of digital technologies.

Jim Goldstein
Are copyrights too stringent in terms of how the law is written?  Do you feel that the length of time of copyrights is too long for what benefits culture?

Lawrence Lessig
Well, it’s not a controversial claim to say that from the perspective of what copyright law is trying to do, mainly to create incentives to produce great new work, the terms are too long.  The terms are way beyond what is necessary to create the incentive to produce great work.  I mean nobody in Hollywood is thinking, “Should we restore this 1950 movie?  Well it doesn’t make sense because the copyright term is only 75 years but, oh, now it’s 95 years, now it does make sense.”  And the reason for that is the value of the additional copyright, 75 years in the future, the value of that to you today is zero.  Discounted to the present value, it’s zero.

[10:46] So the term is much longer than it needs to be, but I think more fundamentally copyright law as architected for the 20th century technologies never needed to worry about a pretty critical distinction in the way creative work gets used.  A distinction between it being used in a commercial context where what I am trying to do is to profit off of your work or to, by selling your work or using your work in an advertisement or something like that.

And another area of culture which has also been critical to the history of culture which is people’s ability to use creative work free of the regulation of the copyright system. In the 20th century, the law didn’t need to worry about that because all the ways ordinary people used copyrighted work, never triggered copyright.  So if I bought a book and loaned it to you, that didn’t trigger copyright law because loaning it to you didn’t produce a copy.  When I read it a thousand times or read it just one time, that didn’t trigger copyright law because it didn’t produce a copy.  When we got together and sang in a group, you know, a bunch of us, you know, decided to sing songs of the day, that didn’t trigger a copyright law, it just didn’t have anything to do with copyright law.  So the law in the 20th century let free all sorts of creative activity and targeted itself, you know, on technologies that would only be used when you were deploying creative work in a commercial context.

In the 21st century, that distinction has been lost.  When I loan you an e-book, I have produced a copy, technically copyright law has been triggered.  When I read it ten times rather than three times, I have produced a copy ten times rather than rather times and I need a license to do that.  When you want to set up a website where a bunch of people can get together and do karaoke on the web, that’s copyright triggered, right there.  So the point is, all of these activities which were traditionally free of the regulation of copyright law are now within the scope of copyright law.

So you could say, is copyright law too stringent?  I am not sure that’s a problem with stringency, I think it’s just too broad, it’s applying to a much wider range of human activity than it ever has historically before.  Never in the history of copyright has it tried to regulate as much of what we do as citizens or humans or creators than it does right now. And so the response isn’t in my view either to abolish copyright law, which again the abolitionists are very keen to, or to find more effective ways to regulate a kid when he takes a video of Hillary Clinton and remixes it to make fun of Hillary Clinton, I think the thing to do is try to find a way to deregulate a significant chunk of culture and allow copyright law to focus on that part of culture that does need the protection and regulation of the law.

And in that area, I would say we ought to be very stringent.  I think where copyright law should be functioning, it should be functioning efficiently and strongly to protect the rights of copyright owners.  It’s just it shouldn’t be functioning as broadly, as expansively, as it is right now.

Jim Goldstein
So I am going to blow to combine my next two questions for you.  Does kind of this, I will call it a reform of sorts of application of copyrights, does that, do you feel that applies equally to all content types? And then, I will kind of put this in context, photography as a whole before digital or before the Internet really was that there was a, I suppose there was a cost or you would make a copy and make it available.  Does the format of analogue versus digital, does that justify a shift in copyright protection or does it make one format less or more worthy than a certain type of range of protection?

Lawrence Lessig
Well, those are I think really, properly two questions.  Let’s start with the first one.  In fact, I think that we do need different understandings from the understandings that existed in the 20th century about how copyright law regulates different forms of speech.  So for example, if you take my book and you quote chunks out of my book in a review of my book designed to embarrass me, there is no question that that use is protected under copyright law and under the First Amendment because that’s critical fair use of my writing.  But ask any filmmaker from the 20th century about the practice of quoting a film in another film, right; clips – taking clips, putting it in a film for the purpose of critique, or for the purpose of documentaries and anything like that, the practice around film developed such that you never did that unless you got permission from the copyright owner.

[15:29] Now, you know, for those of us who live with books, this is kind of an outrageous benefit that filmmakers have; the idea that you can’t quote me unless I give you authorization and I can listen to what you are going to – how you are going to use it and then I get to say, “Oh no, no, you can’t criticize me, I am not going to let you do it for that.”  But the point is the practice had developed with film to give maximum protection to filmmakers partly because the people who were making film were a relatively small group of people who could build these norms of overprotection without worrying about anybody really fighting it.

Music is more like film than it is like books.  Sampling in the context of music in the 1990s obviously created a huge amount of litigation and liability for that kind of use. And so we come into the 21st century with some forms of speech very liberally spread, text, and other forms of speech very, very restrictively controlled, film and music; and I think what we need to do in the 21st century is to normalize those.  We ought to have a standard that’s running across all of them.  So my ability to quote text in a blog should be as effective as my ability to quote a clip in a movie in a video blog that I have.  That should be the same type of protection.  So that’s one area in which I think it has to change.

Now when you talk about, in the second question, whether some forms are more worthy than anything else, I don’t think anything is more worthy than anything else.  I don’t think the law could ever take a position that this is worthy speech, worthy of protection, and that speech isn’t.  But I think the way in which the law protects different kinds of speech needs to be sensitive to the kind of expression that’s at stake there.  And so the particular forms of protection might be different, particular requirements might be different, you know, so when copyright is trying to protect text, the issues that are at stake there are going to be different from the issues at stake with photography for example, and that you have to be cognizant of, but I don’t think it because text is more worthy than photography.

Jim Goldstein
Well, where I was going with this is that, you know, there is often reference to the copy and paste culture and the ease of access and clearly the Internet as a channel distribution makes things so much easier.  So my logic was that if you strictly were shooting film, you wouldn’t really have to worry about the ease of distribution, therefore the mechanism of distribution really played a critical role. And I understand perfectly well that that is solely kind of a pillar to a lot of your discussions and lectures and views.  But I think that it’s kind of challenging for people that still operate in a world of having that option but yet still wanting to reap the benefit of the channel distribution.  So I could shoot film but I could easily just as well scan it and put it out there.  So because I have made that leap to make it available in that distribution channel it then opens Pandora’s box so to speak, and that’s the part where I was starting to think about this.

Lawrence Lessig
[18:45] Yeah.  I think, you know, I got into intellectual property indirectly as one of the parts of the book I wrote, “Code”.  When I was thinking about the relationship between digital technologies and legal policy or the relationship between technology and policy, and when you think of that a bit more broadly, you can think about lots of context where physical constraints of the world gave us certain protections that we took for granted, right. So, you know, what is it that gave us privacy in the 20th century?  It was, if anything, the most important thing giving us privacy was the fact that it was so costly to gather data about us.  It was just a physical fact that if a government wanted to track every telephone call you made and every transaction you made with cash, every transaction you made with your credit card, they would have to spend an enormous amount of money to be able to do that. The cost of clearing permissions to set a wiretap was estimated at $100,000 per wiretap.  These are just costs, and those costs produced by the inefficiency of 20th century technologies inured to the benefit of privacy, right.

Now enter the 21st century where the cheapest thing is to gather all data, it’s costly to get rid of data, where automatically you can begin sucking up everything and government collecting it, then filtering through it when it wants. Now you have got to decide what kind of privacy are you going to protect and which type of restrictions are you going to impose in order to establish that kind of privacy.  It’s the same sort of dynamic happening with copyright.

I think in the 20th century, the inefficiency of the technology of creation made it such that that copyright owner got all sorts of protections beyond the protection of copyright law, right.  So I have produced, I shot some film, there was a protection on other people getting access to and distributing that creative work, that of course copyright law contributed to that, it would have been a violation of copyright law for somebody to come in and copy that film and distribute it, but my better ally was economics, it was that it cost, you know, ten bucks to make a high quality copy of the negative and make that copy available to two people or five people, and so the resource cost was the big protection.  But we shift into a world where that resource cost disappears, now we have got to figure out how to rebalance the law and the protection in light of these new technologies.

So I understand there is a lot of transition issues to work through but I think we ought to be working through it with an objective of re-striking a balance rather than reaching to either extreme which is back to now we can perfectly protect absolutely every single use of my creative work because digital technology also gives you that power or we ought to give up this idea of copyright, it’s just too much of a hassle.  I think neither of those results would be good for the artist and so we are trying to think of something that balances them in the middle.

Jim Goldstein
One of the things that’s often referred to is, you know, the likes of larger corporations really kind of tying up disputes in court and really that becoming its own barrier to being able to challenge the rightful use of a work. And considering that photographers are – for the most part individual photographers are themselves entrepreneurs without the same resources that these larger companies would have, copyrights ultimately serve as – in an economic perspective, the backbone to their ability to generate revenue and recoup costs that might otherwise be accumulated over decades.  How do you interpret the impact of copyright reform to photographers versus the large media conglomerates, and as an add-on, does free culture trump the use of longer term copyrights by the individuals?  How does that – how does the view between these large companies that abuse the system and individuals that use it to kind of secure their livelihood, how does that work out in your view?

Lawrence Lessig
[22:54] Well, I think that there is a very important conflict between, as you were calling these conglomerates and the individual artist, and that’s that the conglomerates actually like an inefficient market around copyrighted material because for example, if you don’t know really who owns what creative work, because we have a copyright system that doesn’t require any identification or registration or anything associated with any work, and you need to use certain work, you want to use a particular work, if it’s highly uncertain who owns the rights, what you are going to do is, you are going to go to one of the copyright conglomerates and you are going to say, “Okay, I need this kind of image, give me this image”, and they are going to, they are going to be able to profit because the system is so uncertain.

So an inefficient market creates a benefit for these conglomerates.  It simultaneously creates a harm for the independent because the independent can’t participate in this market except to the extent that they sign their soul over to the conglomerate.  So, outside of Creative Commons, we’ve been pushing for fundamental reform in the copyright system to make this system a better market, a more efficient market. So that those artists who want to participate in the market half of creativity can actually do so on a fair, level playing field relative to where we are right now.  But you see every time reformers try to get, for example ASCAP, to reveal the licenses that they actually engage in, it’s impossible to do because they depend upon a world of lack of transparency there. But a lack of transparency just translates into an inefficient market making it very hard to compete with the ASCAPs of the world making it very hard to be on the outside, making it very hard to be an independent.

Jim Goldstein
After listening to your TED speech, because that’s what I kind of started blogging about and it revived a lot of discussion in this area for me and – my blog subscribers and just photographers in general, whether they were latently aware of it or it was new to them, I really wanted to revive it and also in reading “Free Culture” it would seem that Creative Commons is following the model that BMI offered music broadcasters versus ASCAP.  So my question for you was what is the objective of Creative Commons?  Is it to create an alternative path to shift activity and expectations of the public and as a result take a longer alternative path to reshape public policy?

Lawrence Lessig
Yeah. You know, there is no single objective I think, but there is a collection that are pretty closely related.  You could think of one of these in a kind of Ronald Reagan like way. In a world of either the big conglomerate copyright owners versus the pirates, we want to create 100 million property owners, we don’t want the feudal system of like seven people owning all the property and we don’t want a world where nobody respects property rights. We want to create 100 million property owners who begin to think about their rights and what they want to do with their creative work. So one of the most exciting things that’s happened in the last month is this explosion of anger in the Columbian blogosphere about a Columbian CC artist’s photograph that was taken from Flickr and published in a newspaper contradicting the license under which it was offered, a non-commercial, no derivatives license.

[26:34] And what’s interesting to me about this is that you have a huge number of people who if the only choice were the binary choice between supporting a conglomerate or supporting piracy, they would be on the side of piracy. But because we’ve reframed this, they are in the position of defending the copyright of this Flickr artist and defending it against its misuse by this commercial entity thereby developing an appreciation of why copyright is important and valuable to creators and why they ought to have the right to control how their work is being used. So this person was happy if you use their work for non-commercial purposes but didn’t want commercial use without expressed permission from the copyright owner, these people – the Columbian bloggers now rally behind this idea.

Now, my view was if we could increase the number of people who think about copyright in that way, again in the Ronald Reagan sense, they’re property owners they think about in that way, that would improve the system for everybody. It would make people more respective of other people’s copyrights, it would put policymakers in a position of thinking not just about Hollywood or the four major labels, think about everybody in the process and eventually lead us to a copyright system that actually made it easier for the 100 million people to do with their copyrights what they wanted.

So I’d be happy – I’d love it if the government tomorrow changed the law such that Creative Commons was no longer necessary – fantastic.  But until the government does that, I think what CC is trying to do is to provide an infrastructure for that alternative to be built and the alternative, I think ultimately supports the project of copyright, it certainly doesn’t, given the alternatives, weaken it.

Jim Goldstein
What would you say is the longer term vision behind Creative Commons and how does say Creative Commons+ factor into that?

Lawrence Lessig
Well, so CC+ is a simple protocol to enable people to get rights beyond the rights granted by the Creative Commons license. So you can click through from our commons deed to a place where you can license commercial rights or buy prints or whatever you want and the importance of that is that it allows creators to live in these two different markets simultaneously, these parallel markets simultaneously.

So if a Flickr photographer had their stuff up under non-commercial, but you clicked on rights beyond and you could get much higher quality prints, or you could get – you could get commercial rights it would make it simpler for that Flickr photographer to opt into free sharing in one context and commercial rights in the second context. This is consistent with the long-term vision of Creative Commons because again the long-term vision of Creative Commons is to encourage both kinds of creativity. We don’t want to wipe out commercial artist.

At the same time, we don’t want to have to turn every amateur into a professional in order to have to be creators. So we’re trying to enable both of those and that’s the – ultimately the objective of CC is to give people options to enable the use of the creative work that they want.

Jim Goldstein
Now, I don’t know if you saw the e-mail when I first enquired about interviewing you, but what really got the conversation moving was I blogged something to the effect that Creative Commons is a great concept –

Lawrence Lessig
That you’ll never use.

Jim Goldstein
– but one that I’ll never employ.

Lawrence Lessig
Yeah.

Jim Goldstein
And of course that was before the Creative Commons+ announcement so it’s kind of serendipity, so to speak, that I was able to enquire about talking with you just before that announcement. Even still, one of the downfalls of Creative Commons is that by its use and growing adoption, commercial entities now feel that they can ask or demand use of imagery at zero cost usually offering up only credit or a weblink if that. And this kind of begs the question is Creative Commons then not creating a culture where publishing outlets and large media companies get the upper hand over individual creative content authors, kind of in the context of using content for free or in ways that the author may have never envisioned or wished or permitted.

Lawrence Lessig
[30:47] I’m not sure how that one follows from the other. I mean again we’ve got a world where people are going to be producing and making stuff available even without Creative Commons and as people imagine a world where you’ve got you the billions of photographs on Flickr and Facebook and Photobucket out there with zero Creative Commons. In that world there is a lot of competition for photographs and commercial publishers now have much greater market opportunity relative to the photographer than they did before. So in that world without Creative Commons, it’s pretty easy for commercial publishers to say to the photographer, I’m not going to give you anything for your photograph. I can get 50 million photographs of the moon. Okay, yours is one, here’s what I’II give you, I’II give you credit.

Now, add Creative Commons into that. I’m not sure how that’s adding to this, if this is a problem. What it is doing is it’s giving artists a simpler way to say I don’t want to have anything to do with you. They can just say non-commercial, no link-through or here are the terms under which I’m going to deal with you, so click-through says I got to get more than credit, I got to get some payment. And if a commercial entity then doesn’t deal with the person under those terms, the problem is the person is – the problem is the interaction between the person who set the terms and the commercial photographer, we’ve just given an expression of those – the options of those terms. So the market has made it so that the photographer has much less market power than they had before, not anything we’ve done with Creative Commons and you know I don’t see what we would add to that other than just enable people to say something.

Jim Goldstein
Right, well there definitely is the flooding of the market because of the technology shift that digital has provided and there’s a lot of really good photographers out there that are amateur but historically I’ve talked to a lot of professional photographers they’ve been interviewed, more are coming, and there is, at least in the historical context, people would request imagery on the cheap, very rarely necessarily for free. And one of the things that I’ve observed whether that’s just my individual perception or other people are seeing this as well can be debated, is that because Creative Commons perhaps say Flickr who, they in themselves have a hand in this as well, because they make it so easy for people to find images, far more easier than it would be to find an equivalent image perhaps on Getty or a commercial site. And because of that ease combined with what seems to be a growing expectation of people making their work available with these different licenses, sometimes knowing full well what that means, oftentimes not, and that in itself creates its own dilemma. It’s that perception on my part and on some of the other people I’ve talked to that perhaps Creative Commons is leading into that effect of expectation setting.

Lawrence Lessig
Well, my understanding of the history of photography, history of commercial photography, is the really significant change happened when the cheap stock photography companies get created. I mean, you know, you come from a world where basically every photographer has their one agents, who’s negotiating very high prices for photographs and then in comes these stock photography companies because of technology making it easier to display these things and radically the costs change, long before Creative Commons enters the field.

So right now, when I create my presentations, I have one window open which is the searching site of Flickr, another window open which is the searching site of istockphoto.com and my preference is to find a CC photo and when I find one I give lots of credit for the photographer but if I can’t find one I’ll go to iStock. iStock is extremely cheap and they have really great photographs right now.

I would think that if you want to understand how the market, the real market for photography has changed, it would be more of the latter examples than the former. Because again New York Times can also choose to go to iStockphoto and if they go to CC for example they picked up Joi Ito’s photograph of Bill Gates and Steve Jobs at the D Conference and their condition on using his attribution-only license with attribution and they posted his photograph and had to give him as a photographer attribution. That, for a guy like Joi Ito that was worth much more than what they would have paid in a world of iStockphoto prices for this particular photograph.

[35:33] So I think it’s important to evaluate the economics but I think it’s important to be accurate about the real economic influences here to be expansive in understanding them. And recognize photographers are going to face a much more competitive marketplace given the power that technology has handed over to amateurs. And one can lament that, no doubt as a photographer one could lament that, but I wouldn’t – I don’t have a lot of empathy because I also see a whole bunch of other photographers who are now able to flourish. I’m a little biased in this, my wife is a Flickr photographer, her name is BFrame on Flickr and she had been an amateur for a long time and she just did her first show in – it was a part of a show in Princeton and sold four photographs for 2,000 bucks extraordinarily successful in my view. And that’s because the technology has enabled her to enter into this space. She is now going to be a CC+ photographer.

I think every time you have another person like my wife who is able to create in this space, that’s something important and valuable. And as much as I regret the fact that somebody can’t make their whole living off being a photographer anymore it’s not a social policy that says we should stop progress in order to preserve some old way of producing.

Jim Goldstein
And I’m not necessarily saying that, and I’m not necessarily trying to pin that all of a sudden the demise of photography is because of Creative Commons. I think that there’s multiple factors – there’s a lot. And it’s a very complex world for photographers who are trying to transition from old to new and for people who are trying to establish themselves in just this new economy and new dynamic of awareness and marketing and distribution. So that’s not what I was necessarily after but it does seem, and I’ll let it go real quickly, it does seem that perhaps there is an unforeseen impact of the likes of Creative Commons and other factors, not just Creative Commons, that people, their expectations become lowered. Now, does that mean that things – that that’s bad or that that’s ultimately going to turn around or needs to be turned around? Not necessarily, that’s just a matter of…

Lawrence Lessig
Okay. Here’s my final pushback on the claim. Again people are stealing photographs all over the place.

Jim Goldstein
Yes, they are unfortunately.

Lawrence Lessig
Magazines picking photographs out of Flickr and using them all over the place. When they steal a CC photograph, there’s a fight. There’s a fight because there’s a CC community that gets together and says this is outrageous. I mean, I’ve been involved in a bunch of them, it’s happening all over the world. So if you want to say the world, what’s CC’s contribution in this space, I think CC’s contribution is to increase awareness among creators about why it’s important to be defending your rights in contexts where people want to take stuff without giving the proper credit. Now, you might – we might still be arguing that we’re not getting enough money, or you’re not getting enough credit, or you’re not whatever, that’s a good argument to have. But given that people are stealing all over the place, I think we should be encouraging movements that are creating fights around stealing. And that’s exactly what’s happening here.

Jim Goldstein
One of the things that I was going to reference is that, I think that Creative Commons+, CC+ is a great development. I mean that kind of – from the commercial perspective of my brain, not just from the cultural benefit side, that seems to be a great development and I’m very excited to see how that develops and I’d like to see how other people are employing it and using it to their benefit and to the benefit of our culture as a whole. On the other hand this – I really don’t want to belabor it – I mean I did have an example where there is this conflict between new and old for Creative Commons use just for people pirating. And the latest example is a friend Lane Heartwell where she had an image used in the “Richter Scales: Here Comes Another Bubble”. So again it goes back to expectation, understanding, awareness again not to pin it on Creative Commons, this really is an awareness and education issue as much as anything where people are still trying to fathom the depths and interpret what the proper use of Creative Commons is, or all rights reserved. And I was kind of curious if you had any kind of perspective on Creative Commons putting information and programs in place to help with that. Is that part of the equation as well?

Lawrence Lessig
[40:08] Yeah, it’s very much an important part of what we want to do. But first, let’s just put easy cases off to one side. For example, I was involved in a fight around AutoWeek’s taking of a photograph off of Flickr and using it, a non-commercial CC license non-commercial photograph used in their magazine. This wasn’t a problem of hard understanding of the difficult terms. This is a professional magazine that knows that the person who took that photograph knew better. He just did something wrong. And many other cases that I’ve seen in the context of Flickr photographs being taken are exactly that. People just steal it. And not surprising, companies are happy to steal just as much as “pirates” are happy to steal. So raising awareness about the wrong in stealing is something we all ought to be doing and I’m proud when the CC community helps with that.

Now, there are harder cases and we do have an obligation and do work hard to try to figure out how to make this as simple and clear as possible recognizing the constraints. The constraint is attention span. In a one-click universe, where people expect to be able to get what they want in one or two clicks, there’s only so much you can present that will actually be understood. So the standard lawyer’s response is to write a 50-page contract and say “Look, I told you, there, paragraph 444 explicitly dealt with this problem”. But if you take it from a UI perspective and you say what can I present that will be actually understood, it’s very, very hard.

Now, in the context of photographs, obviously there’s a very important set of questions that we don’t begin to touch but we are now thinking about how we can make it easier to navigate around not copyrights but publicity rights and privacy rights. Our founder, I mean our Chairman Joi Ito has on Flickr a project called freesouls where he’s taking images – pictures of very beautiful pictures of tech famous people and making them available to be used under just attribution license. And technically in order to use those photographs in a commercial context, you need to be able to clear the model, you have to have model release for them and this is not something we’ve dealt with. But we’re increasingly thinking well maybe we need to be deploying something to enable people to mark that particular right so that people can use the photographs without worrying about the model release.

So that’s a very hard question because model releases are governed by state law, not by federal law and conceivably there are 50 different jurisdictions here in the United States alone. So this is a complicated problem to architect in the best way. But our obligation is to constantly figure out how to make it simpler and more obvious as we look forward.

Jim Goldstein
As it relates to photography, what are the key takeaways that you feel a photographer should know about Creative Commons and Creative Commons programs and what role they play in your vision of free culture?

Lawrence Lessig
So the first thing a photographer has got to decide is whether they are okay with people using photographs of theirs in ways the photographer never intended, never thought about. If they are not, they should not be using CC licenses, they should just be marking their photographs with copyright and insisting, you have any use you need to get permission from me first. But if they want to encourage people to be able to use their photographs, schools using them in educational programs, people who use it for non-commercial uses then what we want to give them is tools to make that relatively simple.

The critical thing for a photographer to remember though, is just because you are enabling one class of uses, non-commercial uses, it doesn’t mean you also can’t be authorizing even exclusive contracts for commercial purposes. And that’s what CC+ is trying to get people to recognize. That because the CC license is non-exclusive you can still have exclusive commercial licenses for certain types of uses. So we want – mostly, the thing I want most is for photographers to help us think about how to make this work better. CC+ was inspired by photographers actually and we want to figure out how to improve it so that it actually helps our artists do their work better and continues to develop the sort of cadre of people who want to defend the rights of those whose stuff has been taken illegally on the – because it had been CC licensed.

Jim Goldstein
Okay. If photographers have input or would like to have a say in how things are developing or if there are controversies and people want to weigh-in, is there a channel or an avenue for that?

Lawrence Lessig
[45:06] Yeah. The most generic place to go is just to send an email to the info address at creativecommons.org but there are community discussion lists in Creative Commons and if you join one of those discussion lists you can basically post any problem, any question. And based on that you can – so once you post a question that raises a particular issue you can then have that question addressed by the whole community.

Jim Goldstein
Okay. Well, that pretty much wraps that, I really appreciate you sharing your generous time with me and to talk about these concerns and issues and developments and I think that it will greatly benefit not just me but a larger community out there.

Lawrence Lessig
Great. Happy to do it. Thanks.

Jim Goldstein
Thank you so much.

Lawrence Lessig
Okay. Bye.

Jim Goldstein
That concludes this episode. Thanks for listening. For future episodes of this podcast, check in at EXIFandBeyond.com. And feedback is always welcomed. Send comments or enquiries inquiries to jim at jmg-galleries.com.

— end of transcript —

[tags]EXIF and Beyond,  podcast,  interview,  transcript, Lawrence Lessig,  Lessig,  Creative Commons,  Stanford,  law,  copyright,  license,  photography,  infringement,  piracy,  CC+, Pods In Print, podsinprint[/tags]