'The license allows you to do that': A small response to my friend Leo

Posted by Nilay Patel on December 22, 2011 02:09 am 38

So this past Sunday my friend Leo Laporte graciously asked me to join his This Week in Tech panel. It was a rowdy good time throughout, but there's been a lot of focus on the first 25 or so minutes, when Leo and I debated SOPA and copyright law. Or rather, we both agreed that SOPA and any similar technical solutions are utterly stupid and then proceeded to passionately disagree about whether copyright law is even worthwhile. I think we have to be responsible to ourselves and our society and find some sort of workable legal framework that addresses pervasive copyright infringement on the internet, and Leo thinks it's a totally lost cause. He asked me several times to find a realistic compromise position, but I don't think he found my responses satisfactory.

(That's cool that we disagreed, by the way. I'm 100 percent confident Leo and I left the show the same way we started: as friends who happen to disagree about something. Those are the best kinds of friends! I like having to defend my opinions. Sometimes it makes them sharper and better. Sometimes I'm completely wrong. I learn something every time, and it seems like a lot of people appreciated our conversation as well. High five, Leo.)

Anyway, today I listened to Leo on his show MacBreak Weekly, and he said something that literally made me stand up and get the laptop to write this post. In response to someone asking how he would feel if someone took TWiT and reposted it without the ads, Leo said:

"Go ahead! Please do. In fact, the license allows you to do that. Our license on all of our shows is you may do anything you want with them for non-commercial purposes as long as you put attribution in."

The license allows you to do that. The license allows you to do that. Fuck me, I totally blew it. I was staring the compromise position in the face and I completely missed it. Words cannot express my sense of foolish despair.

See, open source and Creative Commons licenses are a legal hack that completely depend on the strength of the rights granted by traditional copyright law: instead of enforcing those rights to restrict distribution, the copyright owner enforces her rights to expand distribution. If you download Linux, modify it, and redistribute it without adhering to the terms of the GPL, you're liable for... copyright infringement. Same with TWiT: if you take the show, chop it up, and then repost it without attribution, you violate Leo's Creative Commons license terms and you're liable for... copyright infringement. Selling TWiT on DVD is prohibited commercial use; Leo can up and sue you for... copyright infringement.

All open source and Creative Commons licenses really do is flip the script from "you're not allowed to do anything" to "the license allows you to do that" and then cleverly mumble the second part: "But only if you follow my rules and you're not allowed to do anything else, because that would be breach of contract and copyright infringement." Leo's decided that some rights to TWiT aren't worth giving away, and he's restricting the use of the show in accordance with those decisions. That's a copyright holder asserting his rights as strongly as possible — Leo can't conditionally give away what he doesn't own. I very much doubt Leo will start releasing TWiT content into the public domain anytime soon.

And so there's the beginning of a compromise position. We need to build a copyright law that allows creative people like Leo to choose how their work is distributed and licensed, while recognizing the new ways people actually distribute and consume content on the internet. We need to speed up the revision of the law to reflect the ever-changing nature of technology and explicitly legalize additional fair uses of content so we can protect new generations of creators. We need to stop pretending that regulating physical copies of content is workable or realistic, and think about how to regulate access to content, since that's what really matters online.

Most importantly, we need to stop worrying about all the crusty old people who keep trying to stuff the genie back into the bottle, wake up, and deal with the fact that there is a damn genie running around.

I'll be writing about this a lot more in the coming weeks — I have a SOPA piece for tomorrow and then a longer copyright reform piece tumbling around in my head that I'd like to write up soon. But I just wanted to respond to Leo here. After all, the license allows me to do that.

(By the way, I published a journal article in 2005 on how the open source inversion of traditional copyright protection affected China's ascension into the World Trade Organization, if you want to read more. Yes, I am a huge nerd.)