<nettime> THE LANDMARK LESSIG RULING

[Ben <jben@necco.reengine.net>]

THE LANDMARK LESSIG RULING

This is the final statement, at the end of the last of the P2P file
sharing cases (which was presided over and concluded by Shakil Meritam,
who some considered the ideal geek judge).

It was directed at artists and programmers of all kinds but specifically
at the 22 year old singer who had filed the prosecution case.

The summation took place in late 2005 at a point when the Lessig
presidency was forcing through the fastest most far reaching legal and
political transformation in American history.

Shakil, a young judge at 33, was a man who had some empathy for artists
having written some really clever and much respected open source code in
his younger days. 

"This ruling will be hard to swallow if you were comfortable in the old
world, but in the light of the recent dramatic world events and the logic
of the new administration, and specifically the landmark majority verdict
reached by the recently repaired Supreme Court, it's clear that not
everyone was. Let me outline where we are now with respect to this case.

It is my greatest regret that it will affect artists themselves not just
the parasitic industries that have grown up around their talent. Those of
you, for example, that make a living directly from writing or coding or
making movies or singing,

The essence of my ruling, which follows from the technical and market
realities as this court perceives them, is that you can still charge for
access, and for physical things, but you cannot impose constraints on the
redistribution of bits.

Also there is no change, despite the prosecutions arguments concerning the
technical difficulties of enforcement, in the Supreme Courts caveat ruling
against abuses of personal data privacy. Aggregating or redistributing
pesonal data without explicit permission is still unlawful.

The truth is that copyright as we used to understand it wasn't just easier
to uphold because copying was hard and distributing was easier to control,
it was predicated on it. The law can only help you so far. Copyright as we
used to understand it was reasoned, and in some cases reasonable,
opportunism based on technological circumstances.

I have not ruled that all the ideas behind traditional copyright should be
abandoned just that they should only apply where it makes technological,
political, and social, sense.

I'm sorry you steal feel they stole your work, I have to confess I even
have some mp3's of your songs myself. I really like your stuff. But heres
the position: I can't allow you to invade privacy, lock everyone of us up,
cripple everyones machines and remove useful functionality just so you can
buy a huge condo and a private jet. 

What I can do is sign you up early for the new 'artists wage legislation'
that you and the recording industry are so bitterly opposed to. That
legislation, as you probably know, gets users (people mostly) to register
their media downloads.. Based on the download measure you can get paid the
new 'artists wage' (on a sliding scale based on popularity). The system is
not in place yet and It'll be hard to do and hard to verify, but i think
its going to work out fine.

That will give you just enough to live on, and maybe a bit more cos its
you and you're a really popular strategic propoganda asset of USA inc. 

After that you might want to consider this:

I am not abolishing the market, all of the underlying principles of
copyright, or money, as some old (and controlled) media headlines have
suggested.

Neither am I removing all your possible means of supporting yourself or
growing wealthy.

This and the points i will now make are not facetious, they are the
consensus reality my ruling subjects you to,

If you want to keep the public from just 'stealing' what you have and not
giving anything back you will have to alter the nature of what you give
them and the way you give it to them. It is my view that despite your
denials you have already gone some way towards this reality. 

I'll try and give you some examples of what I am suggesting.

You could make something real and not reducable to bits (but still
distributable) and make it intrinsic to your bit reducible art.

You can require or suggest real things to complete the digital experience
(or become marketing material for harder to reproduce and easier to
control goods) and make money that way (incidentally if you were thinking
of arguing the point that logically follows that - at the point at which
everything is easy to reproduce, money won't matter so much anyway.)

What I am suggesting, you and your industry already well
understand. Acknowledging these unwritten rules (not locking down
copyright) will lead to innovation beyond the computer screen. That is, it
will be good for the transfromation of physical reality..

To get a user to pay to view or listen, you must make your work more
satisfying if viewed in a complex, hard to reproduce setting. People will
pay in those circumstances. Moreover the law will back you if you ask them
to pay for access and they try not to.

..that doesn't give a license to cripple copying and distribution
mechanisms (look how much good feeling that generated)

I'll say again I can only help you protect physical things and access to
streams of bits, but not the bits themselves.

You can argue as long as you like about the supposed injustice of that,
but it is your reality and you must learn to live and survive in that
reality.

You can still get paid. You could create an environment that is always on,
ever changing and that fundamentally requires real time interaction. That
is, an environment that is only relevant when connected. You could then
charge people who want to be connected to your world. You can charge for
an account on the server, specifically *not* the client software, or a
*track* or what happened yesterday.

Offer a real time service not a dead chunk of data.

The industry that funded your appeal had an opportunity early on to build
a culture of subscription for tracks and movies but you blew it for the
sake of greed, and i can't put that genie back in the bottle for you.

I ask you to think of George Lucas realising the potential for star wars
toys, 

Different kinds of artists and creative industries have evolved different
approaches in each new creatively, technologically and legally constrained
circumstance and they *must* continue to do so.

here are some of those historical, extant approaches, that prove my point
about creative industries understanding these ideas prior to the new
legislation:

Sell fast machines and graphics cards (video game tactic), public
performances and tshirts (music tactic), big cinema + blobject + mcdonalds
license (film tactic), physical books and rubber chicken circuit (author
tactic), the unfeasibly huge freeway sculptures by Arnish Kapoor in LA
(fine artists tactic)

Face it, you go and see 'Lord of the Rings 4' in a cinema because it is
more satisfying than watching the DVD on your laptop, and you pay because
you want to be there and they own the building.

You bought a computer because without it you couldn't see the DVD.

You read a book cos at the moment its easier than printing out the hacked
PDF

Now think of all the bands that get paid to play live and make all their
money selling tshirts from a table at the back of the hall

Major commercial artists and producers already recognise this, you realise
this, and you just want to get paid many times over. Which is OK in
principle, but if one of those ways you want to get paid requires
crippling peoples computers and slowing down the flow of digital
information then that way is *not* OK.

Access rights I can enforce, privacy rights i will try and enforce, dead
data redistribution rights i can't.

I think the honest way forward isn't crippling the machines it's constant
evolution and imaginatively binding digitised art to reality in *new* ways 

In physical terms i think that means more than t-shirts.

..to be valuable within this new legal framework data can be bound to the
outside, to the physical world and to the real presence of the artist

>From a marketing perspective companies like Nintendo already recognise
this: look at their swipe card trading cards, but i'm afraid even that
falls short of my ruling

Mobile computing has already opened up the possibilites and not just to
marketing scams but to real innovation

Location aware games now allow locations to be critical to games and you
often have to pay to get in to a game critical location.

This legislation is a carefully considered challenge to artists, The
public won't let you starve because we like your stuff (or some of us
do) but i'm afraid today we want more from you.

don't just make things reducible to dead sequences of bits

you must now take responsibility for (and the rewards that follow
from) transforming physical reality, don't just sing into a computer for
three minutes about change and hope someone else does it 

you're likely to get paid if you change the outside (or force a change in
our real time experience of the inside)

On your way out, remember you have a mighty and unfettered network that
wants to hear and see you

and you can use that network in innovative ways that i haven't forseen,
you can also use the digital media you already know how to create,
distributed free, to support your efforts to transform reality. And if it
matters to you and you're clever or you partner with the right people you
could get paid a lot of money for finding a commercial interpretation of
this landmark ruling.

..and finally remember that your physical presences as an artist increases
in value according to the square of the number of mp3's that people
'steal'. It was a real buzz to spend so many weeks with you."

www.headmap.com/blog

[entirely ficticious first draft written after a late night with no
references to real persons living or dead - no warranty real or implied -
and protected by the full and ominous force of ever expanding copyright
law]

headmap received this important clarification by email shortly after this
was written

"note that the audience's untilled, emotional farmland is a single-use
commodity that will be recapitalized by many industries external to the
"music" industry 

imprinting certain songs on the brains of a teenage audience during their
formative years serves as a selection mechanism for future radio stations,
commercials, period movies, etc

the period of harvesting the fruit of these early seeds is when the
onetime teenagers reach their early-thirties - old enough to have earning
power, young enough to have disposable income (low chance of mortgages,
kids, etc).

the teenagers' attention should be treated as part of a transaction
... companies that engage said attention are benefiting from a
(re)transmission medium for which they are never billed ... and can never
be reused ... formative memories (imprinted on virgin minds) are never
lost or less intense than their successors.

songs are like links in blogs ... molecules that anchor chemical
reactions, given appropriate catalysis ... they are chrono-emotio-spatial
hash signatures by virtue of early binding to formative experiences

the limited resource, the economic resource is not the songs ... it's the
formative experiences ... which are being sold in an invisible transaction
that commits the memory's owner to a lifetime of subsequent
heartstring-pulling ... unpaid and involuntary.

the music industry can and does make money by selling performance rights
to these songs, into infinity ... even if _all_ the songs were given away
for free on P2P networks ... they are an anonymous sorting mechanism
... the only problem is the 17-year gap between binding the song to a
memory and harvesting the disposable income of the memory's owner." Rich
Persaud

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