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Fisking Lessig’s New Permission Culture

Former self-appointed “leader of the Free Culture Movement” Lawrence Lessig writes:

One of the most important conclusions that can be drawn from the work of Benkler, von Hippel, Weber (my review of both is here), and many others is that the Internet has reminded us that we live not just in one economy, but at least two.

How is this conclusion reached? Why is this split identified? Why is it considered useful?

One economy is the traditional “commercial economy,” an economy regulated by the quid pro quo: I'll do this (work, write, sing, etc.) in exchange for money.

This is the economy. Attempting to expand the ideology of economics to non-economic spheres is neoloiberal cretinisation.

Another economy

A metaphoric economy at best. Metaphor should not be confused with reality when constructing arguments.

is (the names are many) the (a) amateur economy, (b) sharing economy, (c) social production economy, (d) noncommercial economy, or (e) p2p economy.

This is a false dichotomy based on confusion of a metaphor with reality. You also seem to have decided to cast things entirely in terms of simplistic market economics.

In fact the existence of this “second economy” is a product of creative freedom. As Open Source advocates fail to understand that they can only do things “just for fun” because of the freedoms that Free Software has won for them, so you seem to fail to understand that “Open Content” (a terrible name that Stallman rightly argues against), or rather Free Culture, is the product of freedoms, not a mysterious spontaneous phenomena that must be explained by the market.

This second economy (however you name it, I'm just going to call it the “second economy”) is the economy of Wikipedia, most FLOSS development, the work of amateur astronomers, etc. It has a different, more complicated logic too it than the commercial economy. If you tried to translate all interactions in this second economy into the frame of the commercial economy, you'd kill it.

And if you described your brain as an economy and tried to force your neurons to pay for firing you'd reach brain death quickly. The metaphor is not the reality. But let's say just for a moment that we tried to bring this “second economy” (actually the social space created by cultural freedom) under the regulation of the market economy. We would need a way of monetising each identifiable work and preventing its exploitation in the “first economy” (the economy).

One way of doing this would be to lock work that is deemed to be a product of this “second economy” (and how do you determine this economically?) out and to demand monetary compensation if it is used by the “first economy”.

The situation that you describe as death for the “second economy” is therefore precisely that created by the NC Begging License that you recommend below.

Having now seen the extraordinary value of this second economy,

This monetary value is the product of the ethical value of the causes of this” economy”. By trying to treat this “economy” as a mysterious phenomena rather than as an effect, then trying to create it (when it has already been created!!!) using ham-fisted economics rather than the ethics that actually create it, you are making the classic economist's mistake.

Prostitution is better for the economy than marriage after all. And public goods are better privatised.

I think most would agree we need to think lots about how best to encourage it

I repeat: protect the rights that create it. Do not try to erase the history of phenomena to create a false lack of causes for them that must then be addressed with the ideology of market economics. Do not try to become the Bzzzagents of “open content”.

– what techniques are needed to call it into life,

Give people the rights, let them create. This happened, it works. It is only by sending the history that produced the phenomena we are examining down the memory hole that we can be mystified enough by their operation to panic that they must need more money or they will disappear.

how is it sustained, what makes it flourish.I don't think anyone knows exactly how to do it well.

Ask Jimbo. Ask Richard. Ask anyone who actually does it.

Those living in real second economy communities (such as Wikipedia) have a good intuition about it.

They are making it a spectacular success if that's what you mean. But what they are making a success of is a space for human culture, not a failed attempt at DRM.

But a second and also extremely difficult problem is how, or whether, the economies can be linked.

Markets float on commons. The business model of reproductions as reputation, monetized by performance is common to Free Software (not “FLOSS”) and Free Culture. This is well known.

Is there a way to cross over from the commercial to second economy?

See previous sentence.

Is there a way to manage a hybrid economy – one that tries to manage this link.

Trans.: how can we reduce people's freedom in order to make more money? This is a false dichotomy. This entire plea for a reduction in freedom to serve the market is a false dichotomy. The model for monetising free culture is well established.

The challenge of the hybrid economy is what Mozilla, RedHat, Second Life, MySpace are struggling with all the time.

MySpace and Second Life aren't a “hybrid economy”. They are enclosures. And Mozilla's management are not very good, which is hard to address with a license.

Red Hat make money, I believe. IBM, Apple, SuSE, and many others you have forgotten to mention all do as well.

How can you continue to inspire the creative work of the second economy, while also expanding the value of the commercial economy?

By protecting and encouraging the ethical framework that causes that “economy” to come into being as a subset of its benefits. Not by attacking and undermining that ethical framework and destroying the very conditions that create the value you feel isn't being monetised in the correct way.

This is, in my view, a different challenge from the challenge of how you call this second economy into being,

Wouldn't it be great if America had roads? How can we build roads across America? I think the government should sieze houses across the continental US in a grid pattern to ensure that roads can be built.

What do you mean America already has roads? We're talking about how to ensure that it has roads. We have to ensure America has roads otherwise it won't.

but obviously, they are related. But this challenge too is one I don't think anyone yet understands fully.

This is argument from personal incredulity and ignores the existing examples of successful models for monetising the products of people's freedoms.

As I watch Creative Commons develop, I've been encouraged by the experiments that try to find a way to preserve this second economy,

Trying to limit this “second economy” for the benefit of the first one is a bizarre way of trying to preserve it. Destroying the village doesn't save it.

while enabling links to the first. I wrote before about Yehuda Berlinger who had set IP law to verse. In that post, I nudged him to adopt a C
C license. He did, but he did so in a very interesting way. As his site now reads:
This work is licensed under a Creative Commons Attribution-NonCommercial 2.5 License. Attribution should include a live link to this blog post, whenever possible; text link otherwise. License for commercial usage also available from the owner.

How fortunate for him that the work he has derived from is in the public domain. How much would he have been willing to pay in order to make this work?

So the answer to “how do we encourage free riders on the commons” is: tell them to make their derivatives of public domain work into noncommercial nagware.

This idea is one we're experimenting with at CC – a NC license that explicitly includes a link to another site to enable commercial licensing.

Commercial licensing is not the passing on of freedom.

It is one way to preserve the separation of these separate spheres.

Wait. Before you were asking how we move value from the “second economy” into the first economy. Now you are talking about ensuring that they remain separate. You seem to want a one-way trap door from cultural freedom to economics. A catflap of the commons.

I'd be eager to hear about other ways you might think better.

The ways that work now, and that people need support to extend into more examples of Free Culture.

But the important point to recognize is that this effort to preserve the separation is fundamentally different from the effort of many in the “free software” or “free content” movement who want all “free” licenses to permit any sort of use, commercial or not.

This effort is indeed fundamentally different. It is ideologically and practically broken, and should not be carried out under a banner of free culture.

Imho, they are simply ignoring an important reality about the difference between these two economies.

Which reality is that? And who has set the terms that we are establishing this “reality” of two different social contexts by?

Indeed, they're making the opposite mistake that many in the commercial world make: Just as many commercial rights holders believe every single use of creative work ought to be regulated by copyright (see, e.g., the push to force what are plainly “fair uses” of copyrighted work on YouTube to pay the copyright owners), so too these advocates of “free content” would push everyone to treat everything as if it is free of copyright regulation (effectively, if not technically).

And if you have a position on the death sentence and I have a position on the death sentence, we both have positions on the death sentence. Therefore neither of us is right.

I'd also question the mischaracterisationof copyleft as “effectively free of copyright regulation”, and your failure to consider trademark and moral rights law.

Second economy sorts believe differently – that some uses should be free, and others should be with permission.

There's a book you should read that argues against the idea of a “permission culture” at length. It's called “Free Culture”, by Lawrence Lessig.

I notice that the link from Yehuda's work to the licensing page does not mention Fair Use. Creative Commons would do better to promote Fair Use than to promote NC Nagware.

It is because I have enormous respect for those who make the latter mistake

The mistake of understanding the cause of the phenomena you are trying to re-create with an economics that will undermine and destroy them?

(and believe their motives are more likely pure)

I am not under NDA to any large media corporations, and am not beholden to Microsoft for my funding, no.

that I urge them to consider the radical simplification of social life they insist we push on the world.

Don't say social when you mean economic.

I like the dynamics of the second economy. Benkler has given it a theory. I think we should be working to support it, not pretending that it is not there.

This is a straw man argument. We should be working to support creative freedom, not pretending that it is not there and that we have an economic mystery to solve.

The obvious reply (and the real puzzle for me) is FLOSS.

This is because the economic success of Free Software is not a product of economics. Freedom is an externality that you destroy by trying to create through markets.

Economics doesn't do irony.

I said at the start it effectively operated in the second economy. But the “free content” movement that I'm skeptical of is simply trying to push the norms of FLOSS into the content space. How could it then be any different?

“Free Content” is as nonsensical as “Open Source”. Remember Free Culture and Free Software instead. Consider the causes, the ethical framework. Not the effects and the cashing out.

In my view, the difference comes from the difference in nature of the stuff.

You have yet to explain this difference, leaving an unexamined assumption at the heart of your argument.

Some cultural production can be collaborative in exactly the way FLOSS is – Wikipedia. But you need an argument to get from some to all. No doubt, I too need an argument that some is different from some. I don't have that yet. But it is here that I think the really important discussion needs to happen.

Try this.

Culture as a whole is a collaborative project. To look at a single part of it such as Wikipedia and say “well that works but I can't see how wre could generalise it” ignores Shakespeare, Homer, The Renaissance, Elvis Presly, in fact it ignores the entirity of Human culture.

The question is not can Wikipedia scale or continue without the blessing of economics. The question is how do we prevent Wikipedia becoming the last outpost of a culture that badly thought out economics is destroying.

Oh, and by the way, Yehuda has added Trademark Law to his verses.

Good for him. I hope you are getting a cut for advertising his work so prominently on a site that must cost a considerable amount in bandwidth charges each month, otherwise you might distort the economics of his venture.

6 replies on “Fisking Lessig’s New Permission Culture”

Lessig appears to be on a mission to find ways of promoting the considered use of copyright by digital artists – in order to preserve the continuation of copyright and shore it up against all the evidence that it is an anachronisim.
The next perversion of copyright license will I suspect be to declare it as essential for the preservation of ‘the new digital gift economy’. This is because free culture doesn’t need copyright (can survive if it is abolished), whereas a digital gift economy DOES need it. This is because you need to restrict the public against private exploitation of the gift-commons (because that is against the quid pro quo of a gift economy).
Therefore this will be the next license CC comes up with, i.e. CC-GE ‘gift economy’. This will be as for CC-SA, but will prohibit any exploitation of private derivatives, i.e. “You may make private derivatives of this work, but you are not permitted to perform, use, or reproduce them until after you have published them under the CC-GE license.”.
Many people think the GPL is already a gift economy license. However, it isn’t. It intends to restore freedom to the public taken away by copyright and patents. It does not say “You may not modify GPL software and exploit it unless you publish your modifications” – as much as many people would like it to. The latter ‘software gift economy’ camp have their own licenses, namely: the Affero/APL and the Honest/HPL.
This is the schism I’m most worried about, i.e. the Gift Economy vs Respect for Privacy schism. The Open Source vs FSF schism (as in Torvalds vs Stallman) is inconsequential in comparison.
This is primarily because Moglen/Stallman are giving out signals they want GPLv3 to be compatible with the Gift Economy licenses.

“Many people think the GPL is already a gift economy license. However, it isn't. It intends to restore freedom to the public taken away by copyright and patents.”
I’m glad somebody else gets this. All the “gift economy” and “commons” reification gets a bit depressing sometimes.
The “economy” (oh God…) Lessig identifies is a product of freedom. Reducing freedom will not increase its products. David Berry’s idea of the GPL as more like a guild than a gift economy makes more sense of this.
“The latter 'software gift economy' camp have their own licenses, namely: the Affero/APL”
I’ve spoken to Matt Lee about Affero and the point he makes is that it will impact ordinary WordPress users much more than Google. But the point I’d make is that the intuition that leads to Affero is basically correct: people who use GPL code in web sites are making the public private and are free riders in a *freedom* or *rights* sense as well as a gift economy one. I am using the code through a web interface but am not free to modify it. Admittedly unless I have a thousand servers to run Google’s code on it’s not much use to me, but immediate re-use use isn’t the only point of Free Software.

The ‘using code through a web interface’ confusion is so bad I’m dismayed even Stallman and Moglen have been tripped over by it. That’s a reciprocity issue, and not a ‘restraint of the public’ issue. Because the GPL seems so close to a reciprocal disclosure bargain (as per gift economy), it’s very easy to slip into thinking that exploitation of undisclosed modifications is somehow a loophole that evades disclosure.
It’s not. The point of the GPL is NOT ‘you must reciprocate, you must give back – you may not exploit without payment in kind’ but ACTUALLY ‘you may not restrict the public, by any mechanism however devious’.
However, this only applies in the public domain.
Choosing not to publish modifications is a human right. Exploiting unpublished modifications is similarly so.
Either you publish software or you do not. If you do publish it, then you do so fully without obfuscation.
Publishing means delivering a copy to a member of the public.
Enabling a member of the public to sit at a terminal to make remote use of software on your computer is not delivering a copy of the software, it’s enabling them to use it.
Use is not delivery.
People buying copies of software know they’re not paying for the opportunity to use it without it being delivered to them (although this is what DRM aims to achieve).
The price to use unreleased software is consequently different from the price to obtain a copy of the software.
Being able to sell use, without selling copies, may upset the gift economists, but it does not upset the libertarians who would have copyright, patents, and DMCA abolished – without seeing the right to privacy compromised.
Stallman/Moglen have to decide whether they’re gift economists or libertarians, they can’t have it both ways.

There is no such thing as a free rider of the public domain – this is double-speak. Or, at least, it is when intended pejoratively. In truth all human beings are encouraged to freely stand upon the shoulders of their fellows and ancestors, and encouraged, but not obliged, to contribute their knowledge and art to the public domain. Remember, copyright and patents are intended to ENCOURAGE publication of private work – not to oblige it. Without them, it would be regressive indeed to replace incentive with legal compulsion.
The proprietary model seeks to pervert a brief incentive into permanent private ownership, and prohibition of use, of published work without payment.
The gift economy model seeks to retain permanent public ownership of published works and prohibit their private use without reciprocation.
Both of these models require restricting the people, e.g. “You may not do X with published art without permission”, or “You may not do Y with published art unless you do Z”.
The libertarian model simply says “Anyone can do what the heck they want as long as they respect people’s rights to truth and privacy.”. And that means you can do what the heck you want in private or public with anything you find in the public domain, as long as you don’t impair truth or invade/violate anyone’s privacy. There is absolutely no notion or requirement for reciprocation – any bargains are made independently, e.g. I’ll release my private mods if you pay me X, or I’ll let you use my private mods if you pay me Y.
Without the Affero clause, the GPLv3 is a libertarian license. With it, it’s a gift economy one.
As soon as you get anywhere near saying “Simulating a desktop application via a web browser is just not keeping in the spirit of things” then you’re a gift economist. People have a right to keep things private, irrespective of whether they publicly exploit their private work, until they choose to publish their private work. If people want someone to publish their private work then they pay them.
The GPL requirement to provide source code is not an unfair compulsion to publish private works, it’s merely a copyright nullification mechanism that says “If you do publish something, then you should not obfuscate it, e.g. provide a binary encoding of the software, or apply DRM”. “If you don’t want to publish your source code, fine, no one’s forcing you to. You can continue to exploit your private work until the cows come home with no need to feel you’re a free rider.”
The best way of detecting the difference between a libertarian and gift economy license is to consider whether the obligations of the license would have to happen in the absence of copyright/patents.
Without copyright, you can purchase a copy of WordPress and provide a better version called MyWordpress. And you don’t need to provide the source code of your modified version to anyone if you don’t want to. If someone comes along and says “Hey, I want to produce MyBetterWord. Will you sell me a copy of your software?”, firstly, they won’t accept a binary because it’s no good to them, so they’ll get the source code. Secondly the seller of MyWordpress can’t impose any restrictions, so the buyer is free to make private modifications to turn MyWordpress into MyBetterWord.
Now, gift economists would ask for a new gift economy statute that would prohibit this kind of behaviour, e.g. “All persons providing a software based service must surrender the source code for any modifications they have made to anyone on request at any time and free of charge”. This is a privacy violation. Not least, it requires a new law compelling disclosure, therefore is not pre-copyright, and therefore is not libertarian.

“There is no such thing as a free rider of the public domain – this is double-speak. ”
I am being mischievous here. There are a couple of other examples of me being mischiveous (notably the last paragraph). But they serve to make a serious point about simple-minded economic fundamentalism.
That said, Disney are currently a PD free rider by virtue of their constant copyright extension, so the idea is not entirely double-speak.
“The libertarian model simply says “Anyone can do what the heck they want as long as they respect people's rights to truth and privacy.”.”
Both the “gift economy” and “libertarian” models are *products* of, or models of the results of, Stallmanian Freedom. They are simple opposites around the principle of exploitation of resources (value extraction, “cashing out”, extra-computational effects). Neither captures what Stallman has in mind with “use”, they are downstream of it. So the GPL does not have to choose. Rather it has to avoid capture by either camp. Which is why Affero is a bad idea if it *is* a gift economy (or Torvaldian quid pro quo) measure.
“Without the Affero clause, the GPLv3 is a libertarian license. With it, it's a gift economy one.”
I currently still feel that servicization (ugh) is a form of proprietization that *exploits* the public / private distinction. It is not the same as my accountant handing me an Exel spreadsheet or a cinema showing me a movie rendered using RenderMan because I am interacting with the executing software but restrained from “use” of it. If the core issue is whether I own the computing resources I feel this isn’t subtle enough. I *am* willing to be persuaded otherwise, but I have a lot more thinking to do around the idea. I will get a blog post together on this.

Disney is entitled to a free ride, and welcome to it.
What it is doing however, is fencing off its work and preventing anyone else riding on it. Disney is extending a temporary restraint into a permanent restraint. It it theme parking the entire public domain and charging for rides – Disney enjoys their free ride, but ensures no-one else gets one.
It is not that Disney is getting a free ride that is the problem, it is that it is using copyright to prohibit anyone else from doing so.
Ditch copyright. Reprimand Disney. Restore liberty.
The brothers Grimm would probably have understood.

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