The Right Coast

August 05, 2004
Some things never change
By Tom Smith

It's nice to know that in this wired-up, post-modern, interconnected, hip, cyber-cool world of ours, some things stay the same. To wit, if it is big, they will want to regulate it. Or, perhaps more accurately, simply, they will want to regulate it. The latest thing in need of regulation, or probably transformative post-regulatory readjustment, or something, is the copyright law that allows NBC to tell a film maker, no, he can't use an unflattering interview with Bush on an NBC program in his film. Oh my God, it's media concentration getting in the way of speaking truth to power, and it's Professor Lessig to the rescue, sort of. In this month's Wired magazine, the professor opines that even though the film maker can and apparently is going to use the NBC footage in his film, without permission, this isn't good enough, because sometimes people who claim fair use get sued, and these suits discourage fair use. So, and I gather this is a big theme of Lessig's writing, we need to weaken copyright laws so people can more freely use other people's stuff, especially if they're criticizing Republican presidents, or maybe that's just a happy consequence in this case.

I'll just skip over the gaggingly PC aspects of the piece. OK, I won't. Lessig opines that no self-respecting President would speak to an all-male private club (this is the starting point of an argument). Well, excuse me, but like hell he wouldn't. He spoke to the Pope. No girl Popes. Yet the Prez confabs. Why? Because he's politically important. Similarly, Bush has spoken big time to the Knights of Columbus in Ohio, and a very important group they are to him, too. It's an all male, private organization. And they're really, really against abortion and have been known to hoist a few while watching the game. So not only do they exist, but they are very un-PC at the same time. Troubling, I know, but there you have it. The Lessigian insight is that just as you wouldn't exclude women from your audience (false, but OK), you shouldn't use copyright to exclude people from your audience. Boy, that's a dazzler. Perhaps the way this argument is supposed to work is that when Lessig links copyright to sex discrimination, we go into brainlock, being so busy with running around in circles, screeching and waving our hands in the air. Oh my GOD, it's exclusion on the basis of gender! While we are about to faint from the sheer horror of it, Lessig attempts to slip past a patently dumb non-sequiter. I suppose we should be relieved that the argument is obviously false from the get go (uh, yes, Bush does commonly speak to exclusive groups), so as to relieve us of the toil of eliminating those obnoxious arguments, so commonly produced by professors, which are perniciously, but not obviously, false.

The real puzzler here is how anyone could think Lessig's argument here is smart, which he presumably does, having attached his name to it (so don't you try an' steal it, now!).

Allow me to clear some things up. We have informational property. Why? So people can make money producing it. NBC has shareholders. They like property. NBC says, let's not enforce our copyrights! NBC shareholders say boo hoo. In fact, because making informational property is profitable, there's more of it! Not just NBC, but lots of places. Bush talks to NBC, the Knights of Columbus, and lots of other groups that are mere subsets of the the entire universe, because they're big, even if they are not as big as everybody. NBC is big because they make money. They make money because they have property. How big? Just guessing, but probably more people will watch a single Sienfeld rerun on a Wednesday night than will ever see the provocative, thoughtful, courageous, usual lefty cant art house flick that should be the occassion of throwing NBC's property out the window, in Lessig's distinguished view. (And might I just add, the notion that the info-sphere would be any poorer for one less left celluo-screed on the evilness of Bush and the Iraq war is risible. Maybe there should be an exception to the fair use doctrine called the stupid, unoriginal use doctrine, under which you can't use it for that even if it would be fair) In any event, that's why Bush talks to NBC, and why Bush would and should talk to a club that admited only white, male dwarves, if it had enough members.

Oh, but I forgot. It's so big, NBC. Or was that Amalgamated Rope or one of the other thousands of other firms or industries or activities that have to be de-propertied or else something or other will suffer? It's railroads and law professors all over again. It's 1912 in cyberspace.