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Peter Krogh's Rebuttal to Our Post on Lawrence Lessig

In the interests of providing a forum for discourse on this subject, from time to time we offer differing and alternative viewpoints to be put forth, and to that end, Peter Krogh, former ASMP national board member, author of The DAM Book, Digital Asset Management for Photographers, and a longtime colleague of mine, has sent along an alternative viewpoint to our post titled "Lessig's Kool-Aid: Proposed New Norms - Don't Drink", which was a follow-up to our original post - "Thank God for Disney, The Wire Services, and the Record Labels!", in which we take great umbrage with Lawrence Lessig's position that was essentially encouraging wide-spread theft of intellectual property.

Following Peter's rebuttal, we'll offer a short response, and then the floor is open in the comments.


John,
At the risk of seeming to be allied with the antichrist, I would like to point out that you are missing a large part of Lessig's point. And one part of it is undeniable - laws have not caught up with changing technology and cultural practice.

If you have not seen it, you need to watch RIP - A Remix Manifesto. It's freely available on the interwebs. It makes a pretty convincing argument that copyright law is broken. I don't agree with all of it, but I do agree with some of it.

It's clear that copyright law is being written for the large copyright aggregator, not the independent creator. The US registration scheme has long been written to protect the interests of big media while it works against the independent creator.

I believe that one of the difficulties we have is that photographers have cast their lot with big media, and our interests do not coincide. As a rule, we don't have the legal firepower nor the long-term interest in IP protection to warrant support of the same policies.

By taking the side of copyright aggregators, we say to the world, yeah, we are on the side of the assholes (as many people perceive them). But we are not Warner music - collecting royalties on "Happy Birthday" 100 years later. We have an entirely different set of realities, needs and priorities.

Pretending that our interests coincide with those of big corporate copyright aggregators will not be effective for us, in the long term.

I'm definitely not saying that appropriation from the independent artist without compensation is okay. I don't think Lessig is saying that either. I think he is talking about big media - remixing works that have become part of the cultural fabric, and have already earned a generous return.

Of course this is a tough line for us to walk. I don't want to say any appropriation is simply okay. But are we really on board with supporting a $400,000 fine for downloading a handful of MP3 files from Napster? I, personally, don't think that's a reasonable punishment for the equivalent of shoplifting a CD from Walmart.

You can say "it's the law", but the law didn't get there by itself. It got there because big media made it happen. And they pushed for that law instead of one that would really be beneficial to the independent creator - such as the right to sue for copyright infringement in small claims court, rather than federal court. (This is a place where the interests of the creator and big media are in direct confrontation).

I think what Lessig is saying is that laws have not caught up with the reality of the digital age. The deficiency of those laws gets a lot more obvious once you take your perspective overseas. A licensing scheme that seems plausible in the USA is laughably unrealistic in most of the rest of the world.

I recently spoke with a software company representative who acknowledged that there is simply no way that they could mass market in India or China. The value proposition is entirely broken. I have seen this myself in Africa.

I certainly don't have the answers (in many cases, there simply are no good answers at the moment). And I don't think Lessig has all the answers either. But until we accept some of the nuances and complexities of the entire situation, we won't even start down the road to a solution that works for the independent creator.

As I said earlier, I suggest taking a look at Brett Gaylor's film RIP. It really helps to frame this as a more complex issue

Peter Krogh
Author, The DAM Book, Digital Asset Management for Photographers
Second Edition May, 2009
www.theDAMbook.com

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We respond:

So, let me follow your logic on this one, see if I get it wrong:

The laws against the theft of intellectual property should be updated to allow for more efficient enforcement, tracking and compensation.

So, in the mean time, people should be encouraged to steal photographs from photographers, and photographers should be encouraged to throw away their IP or to allow unauthorized and objectionable uses of their creations?

Anyone should be able to go to your website, take photographs, use them, "remix" them, and do so without your knowledge or permission. Is that correct?

Really?

If not, what position would you take on people who visit your website and 1) want to use a photograph without your permission, or 2) take a photograph and remix it without permission?

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