Keen on Lessig

I never expected my new friend, Stanford Law professor and founder of Creative Commons Larry Lessig, to make such a lucid argument about why professional media matters. After all, Larry -- who I fondly regard as the world's most erudite lauder of the appropriation of intellectual property -- is usually quite critical of professionally created media content. But there he was this morning, sitting right next to me, making a spellbindingly sophisticated argument in favor the value of professional media.

Larry had very generously invited me to participate in his Legal Futures conference, a Stanford Law School event featuring the leading scions of the digital aristocracy. With some senior execs from Microsoft, Google and Time Warner, he and I sat this morning on a panel about professional media. So what did Larry choose to discuss? Did he talk about the structural economic crisis of the music industry, the recent New York Times layoffs or the just resolved Hollywood writer's strike. No, no, no. Larry chose to speak about Keen on Lessig. He began his talk about professional media by attacking my assertion, in Cult, that he lauds the appropriation of intellectual property. Larry said I was wrong. He said that I had no proof that he has ever lauded online IP theft.

Now why would Larry begin his discussion about professional media with the defense of the indefensible. After all, everybody knows that, as the rabble-rousing founder of Creative Commons, Larry has lauded -- implicitly or otherwise -- the appropriation of intellectual property. Many of Larry's critics and even some of his friends (off-the-record, of course) -- in the law, in media, in politics and in the academy -- have confirmed this to me. So why confront me on a fact that is patently true? And why challenge me over an assertion that can be found all over the Internet, in blogs and websites critical of Larry's radically permissive attitude toward intellectual property.

It has to do, of course, with the power of mainstream media. What upset Larry is not so much what I said but rather the powerful vehicle of my assertion. Instead of a narcissistic blog read by a handful of insiders (what you are now reading), Cult is a paragon of the power of mainstream media. The hardback version of the book has been a huge critical and commercial success. Cult has already gone through six printings and been read by tens of thousands of enthusiastic readers around the world. It is being translated into numerous foreign languages including Chinese, Portuguese, French, German, Japanese, Polish, Dutch and Turkish. And all this before the launch of the paperback version of Cult later this summer -- an publishing event which will introduce Larry's most intimate thoughts about intellectual property to hundreds of thousands of new readers.

This is, of course, why Larry chose to begin his analysis of professional media at Legal Futures this morning with such a passionate rant. Because of the commercial and intellectual power of professional media, a massive army of readers -- from Warsaw to Beijing to Lisbon to Tokyo -- now know all about Larry's naughtily illicit thoughts about intellectual property. They are shouting it on the streets now. Keen on Lessig has gone global. From the mosques of Istanbul to the Baptist churches of Dixie to the synogogues of Golders Green, everybody knows that Stanford Law School professor and Creative Commons founder Larry Lessig lauds the appropriation of intellectual property. And that, Larry -- as you argued with your trademark brilliance this morning -- is why professional media matters.

Comments

[Drue Kataoka]

Andrew-
The panel on "The Future of Professionally Created Content" featuring you, Dr. Lessig, Hal Varian, Tom Rubin, & Paul Cappuccio was certainly the highlight of the Stanford Legal Futures Conference. Thank you for the informative and lively discussion and for not putting yourselves on "auto-pilot."

Bill Fenwick and I covered the panel at ValleyZen here:
http://www.valleyzen.com/2008/03/10/everybody-should-run-for-president-at-the-same-time/

[gruespot]

where can we hear the debate?

[anonymous Stanford law]

I was there too. Why did Lessig get so animated? You've really got under his skin. Congratulations! He's a total prig and hated by most of my classmates at Stanford.

[Blaise Alleyne]

So, professional media is asked "many of Larry's critics" whether something about him is true and not providing any sources?

[David desJardins]

Unlike Keen, I've actually read Lessig's work. It's ok for Keen to oppose Lessig's ideas, but it seems weird that he doesn't even know what they are.

[Alec Resnick]

So during the debate, as I understand it, when Lessig asked you for an instance in his writings where he "lauded the appropriation of intellectual property," you were unable to come up with an example.

I totally understand that this could simply be a case of not having notes and references on hand, but I was wondering whether you could respond to that inquiry now? I wasn't lucky enough to be at the panel, but as Lessig describes it on his blog: "I asked Keen if he had ever read anything I had written. He said he had. I asked him to name one instance where I had ever 'laud[ed] the appropriation of intellectual property.' He sat silently. I pressed. He had no answer. He could name no instance of my 'laud[ing] the appropriation of intellectual property' because that's not my schtick. Indeed, as I repeatedly insisted in Free Culture (see pages 10, 18, 62, 63, 64, 65, 66, 139, 255), what others call 'piracy' I was emphatically not writing to defend. Indeed, I criticized it as 'wrong.'"

[Nathan D]

"radically permissive attitude" -- sorry, but this characterization simply does not stand up to scrutiny if you read Lessig's ACTUAL words rather than the caricature of his positions you see in the "mass" media. You're talking about a man who has taken the "radical" notion that copyright policy should go back to being more or less what it looked like under the Nixon administration -- that fair use should have meaning, that "limited term" should be, well, limited, and that culture has for centuries relied on "remix" as a form of commentary and innovation. Radical, indeed.

[Robert Link]

Andrew,

You write, "...everybody knows that, as the rabble-rousing founder of Creative Commons, Larry has lauded -- implicitly or otherwise...". A bit about the form of your argument, and I'll use Schopenhauer's "The Art of Controversy" (ToAC) as my model, so we have a common reference point. You made a claim, you were challenged to substantiate that claim. At the time of the challenge it seems you fell silent. In the relative safety of your blog you write as quoted, said quote being quite a nice example of what ToAC calls "Postulate What Has To Be Proved". But there's another cheap shot in your words, built on what ToAC would describe as "The Homonymy", in which one claims credit for refuting X when one has in reality only addressed a homonym of X. On the one hand, take the case of using a story in the public domain and turning it into the world's first full length animated feature film. On the other hand take the case of forging a Van Gogh. Both appropriate intellectual property. One does so with perfect legitimacy, the other thereby commits the crime of fraud. Since you seem unable to cite a reference of Lessig's lauding of appropriation, perhaps you can explain in which sense you mean the term?

Unlike Lessig, I do in fact "laud the appropriation of intellectual property". IP as we know it is not only a fiction of the law, but a fiction who's time has passed. IP law as we know it might arguably have been apt in the Gutenberg era, but in a free market when supply approaches the azimuth price seeks the nadir, and current IP does little more than create the illusion of scarcity in order to fraudulently bolster incomes of entities that cannot adapt to the realities of the day, in which an ever growing pool of content creators can supply, replicate, and distribute their works almost without limit.

Finally, there's one more cheat in your post, and that's the casual "kidding on the square" tone, which I can only interpret as a kind of preparatory stance of one accustomed to relying on #27 of Schopenhauer's list, "Anger Indicates a Weak Point". Based on this one sample it seems the only real strength of at least one "professional" content creator is use of distracting irrelevancies and illegitimate forms of argumentation. It's a pity then that the tools to discredit such methods are so easily in the reach of the amateurs.

References:
Arthur Schopenhauer
Die Kunst, Recht zu behalten - The Art Of Controversy
http://coolhaus.de/art-of-controversy/

Postulate What Has To Be Proved
http://coolhaus.de/art-of-controversy/erist06.htm

The Homonymy
http://coolhaus.de/art-of-controversy/erist02.htm

Anger Indicates a Weak Point
http://coolhaus.de/art-of-controversy/erist27.htm

[Mark Wiertz]

Argumentum ad populum : After all, everybody knows that, as the rabble-rousing founder of Creative Commons, Larry has lauded -- implicitly or otherwise -- the appropriation of intellectual property.

"Everybody knows" is not proof of anything.

[Jim Strathmeyer]

"I was there too. Why did Lessig get so animated? You've really got under his skin. Congratulations! He's a total prig and hated by most of my classmates at Stanford."

Indded, people get upset when you lie about them in real life as well as on the Internet.

[Your Mom]

You got pwned by Lessig, dude. Give it up!

[Jason Mittell]

As I understand it, Keen is arguing that by founding CC, Lessig is lauding the appropriation of intellectual property (key phrase above: "After all, everybody knows that, as the rabble-rousing founder of Creative Commons, Larry has lauded -- implicitly or otherwise -- the appropriation of intellectual property.").

There is of course a key word missing here: Lessig is lauding the authorized appropriation of intellectual property. CC allows people to appropriate their content by granting those rights explicitly.

By extension, I laud the erosion of personal property rights by letting people into my house.

In the unauthorized appropriation of a great American philosopher, what a maroon...

[Dale Hunscher]

Andrew, I enjoy your writings and can agree with a good deal of what you say about the dangers inherent in the "wisdom of the crowd". That said, I also agree with Lessig that if you are going to accuse him of advocating felonious conduct, you owe him (and your readers, myself included) an explicit verifiable citation. Absent the citation, you owe him an apology. The fact that some vast number of people are shouting an unverified assertion from the rooftops is not proof of its veracity, regardless of the diversity of their locations or religious affiliations.

If it is your *belief* that Lessig has advocated the appropriation of personal property by implication, or that others have interpreted his public utterances as such advocacy, but you don't have a basis for that belief other than that you have heard other people say so or that you choose to so interpret his writings and utterances, you should make clear that this is your opinion rather than stating it as fact without providing evidence thereof. Otherwise, you risk losing members of your audience who filter their sources of information based on criteria of intellectual rigor and integrity. For what it's worth, I'm one of them.

[Andrew]

Andrew, questions are punctuated with question marks; using a period instead just makes you look stupid. And using "everybody knows" as a basis for argument makes you sound like an idiot.

[George K.]

I know nothing about your book or you, and only know Lessig's name because I work at Stanford. Ran across a reference to your conflict in my RSS reader.

Based solely on what you've written here, you evidently think your book is the Second Coming. Your arrogance is astounding.

[joel h]

Ah, but this is the standard MO of you, isn't it, Mr. Keen? Say something seemingly controversial, but then don't have anything to back it up.
I saw a panel with you and Lev Grossman a while back. I got bored, eventually, because the conversation kept repeating itself.
Keen: There's all these people on the internet...thinking they'll get rich, thinking they'll become famous, selling their house to start their web business
Lev: Where are all these people you are talking about? I've never met or seen any of them.
Keen: There's all these people *yadda yadda*

Perhaps you do have evidence of all these claims, but it seems reasonable to expect you to produce it, especially when you go on these talks and panels specifically to make such statements.
My wife NEVER lets me slide with these kinds of things:
Me - "Sweetie, you ALWAYS leave messes for me to clean up"
Sweetie - "Name once"
Me - "Ummmmm"
Sweetie - "I thought so"
Me - *curses, I really have to start taking notes*

I think we should expect at least this level of debate.

[Wee Willie]

Keen is lauding, implicitly or otherwise, bad research and faulty reasoning. I haven't read his book, but I am a great authority and besides, everyone knows Keen is a dick.

[Aelfscine]

Sir, Lord help us if you are the fruit of 'professional media.' A sentence like

"After all, everybody knows that, as the rabble-rousing founder of Creative Commons, Larry has lauded -- implicitly or otherwise -- the appropriation of intellectual property."

gives us THREE logical fallacies in one utterance!

"Everybody knows that..." - Appeal to the Public
"rabble-rousing" - Ad Hominem (Personal attack)
"implicitly or otherwise etc." - Straw Man

But silly me, I pulled those fallacies off of some law professor's debate page, and everybody knows that jerk amateur lawyers are evil.
http://www.csun.edu/~dgw61315/fallacies.html

[Brian F]

"Absent the citation, you owe him an apology."

That seems pretty reasonable. But do professionals apologize?

Maybe that's just an amateur thing.

I'm sure Keen will let us know. If he says that professionals do not have to apologize for their false statements, I'm willing to accept that.

[jk]

Mr. Keen:

If you truly believe that "everyone knows that ..." and "the internets say that ..." are valid forms of argument, you are a bigger fool than I have yet encountered in my many years on the internet.

I don't believe you actually think that though, as your actions are much more consistent with your being a troll and publicity whore who cares more about people looking at him (even if only to laugh) than about actually contributing anything.

[John]

Nathan D. mentions a Van Gogh copy as an example of appropriation as fraud. So this example is not whether something is legal or not. "Appropriation" as Keen uses the term is too broad. Lessig responds he does not support piracy, that is to say illegal appropriation. He and Creative Commons only provide a legal way for appropriation over the Internet. I think Keen suggests a broader idea of appropriation as a policy that works against creation of works and livelihood of authors. So the question is whether he supports fair use and any balance of author rights with the public's rights in any "intellectual property" including when lives are in question, such as expensive cancer drugs in Thailand, or patenting seeds with terminator technology. The debate then goes beyond what is lawful to what is reasonable. In the case of Van Gogh and art, it seems that Van Gogh is now considered a "genius" of innovation, but he spent his early career as a painter in copying other artists (according to a book that I saw in the Van Gogh museum, too expensive for me to buy!). Likewise, John Updike rails against the Internet and similar appropriation and distribution of literary works, but he certainly appropriated the themes and ideas of Nathaniel Hawthorne for several of his own novels. The point is that we live in a common culture, there must be a balance between reuse and recycling old works, and creation of new works, usually not exact copies that pose any commercial threat to the livelihood of creative artists, but which actually improve on and further the old works. So what does Keen say about that (I am not going to pay to hear his answer by buying his book, sorry).

[Muireann Cantillon]

I do not quite understand the gist of your argument. Can you explain to me, if mainstream media have all the power and blogs are only an execise in narcissism, why do you have a blog?

Why are you collaborating with the enemy? Why are you using the tools that undermine the professional mainstream you laud?

[Kjell Andorsen]

The irony of an author who is known for lambasting the "wisdom of the crowds" resorting to an argument based on "everybody knows" is just delightful. Simply priceless.

[Gavin Adkins]

Danielle Steel sold a lot of books too.

You're a hack buddy, get over it.

[Tim Hannigan]

right on - cheers to the smug Brit!
You always sport an angry face when I see you in the media; why can't you smile more?
As the voice of web2.0 doom, need you act out the part as well?

[Chris Castle]

Try this: http://video.google.com/videoplay?docid=7661663613180520595&q=23c3

Somewhere around 1:01 he starts admonishing the crowd to break DRM. Nice quote from John Perry Barlow, too, re "you are our Electronic Hezbollah".

This was addressing the 23rd Chaos Communication Congress, which I'm told descends from the old Chaos Computer Club. I think they're called "hackers" right?