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Annotated captions of Larry Lessig says the law is strangling creativity in English

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(Applause)

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I want to talk to you a little bit about user-generated content.

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I'm going to tell you three stories on the way to one argument

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that's going to tell you a little bit

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about how we open user-generated content up for business.

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So, here's the first story.

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1906. This man, John Philip Sousa, traveled to this place,

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the United States Capitol, to talk about this technology,

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what he called the, quote, "talking machines."

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Sousa was not a fan of the talking machines.

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This is what he had to say.

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"These talking machines are going to ruin artistic development

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of music in this country.

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When I was a boy, in front of every house in the summer evenings,

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you would find young people together

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singing the songs of the day, or the old songs.

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Today, you hear these infernal machines going night and day.

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We will not have a vocal chord left," Sousa said.

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"The vocal chords will be eliminated by a process of evolution

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as was the tail of man when he came from the ape."

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Now, this is the picture I want you to focus on.

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This is a picture of culture.

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We could describe it using modern computer terminology

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as a kind of read-write culture.

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It's a culture where people participate in the creation

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and the re-creation of their culture. In that sense, it's read-write.

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Sousa's fear was that we would lose that capacity

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because of these, quote, "infernal machines." They would take it away.

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And in its place, we'd have the opposite of read-write culture,

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what we could call read-only culture.

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Culture where creativity was consumed

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but the consumer is not a creator.

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A culture which is top-down, owned,

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where the vocal chords of the millions have been lost.

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Now, as you look back at the twentieth century,

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at least in what we think of as the, quote, "developed world" --

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hard not to conclude that Sousa was right.

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Never before in the history of human culture

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had it been as professionalized, never before as concentrated.

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Never before has creativity of the millions

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been as effectively displaced,

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and displaced because of these, quote, "infernal machines."

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The twentieth century was that century

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where, at least for those places we know the best,

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culture moved from this read-write to read-only existence.

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So, second. Land is a kind of property --

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it is property. It's protected by law.

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As Lord Blackstone described it, land is protected by trespass law,

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for most of the history of trespass law,

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by presuming it protects the land all the way down below

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and to an indefinite extent upward.

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Now, that was a pretty good system

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for most of the history of the regulation of land,

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until this technology came along, and people began to wonder,

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were these instruments trespassers

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as they flew over land without clearing the rights

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of the farms below as they traveled across the country?

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Well, in 1945, Supreme Court got a chance to address that question.

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Two farmers, Thomas Lee and Tinie Causby, who raised chickens,

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had a significant complaint because of these technologies.

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The complaint was that their

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chickens followed the pattern of the airplanes

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and flew themselves into the walls of the barn

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when the airplanes flew over the land.

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And so they appealed to Lord Blackstone

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to say these airplanes were trespassing.

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Since time immemorial, the law had said,

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you can't fly over the land without permission of the landowner,

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so this flight must stop.

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Well, the Supreme Court considered this 100-years tradition

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and said, in an opinion written by Justice Douglas,

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that the Causbys must lose.

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The Supreme Court said the doctrine protecting land

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all the way to the sky has no place in the modern world,

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otherwise every transcontinental flight would

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subject the operator to countless trespass suits.

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Common sense, a rare idea in the law, but here it was. Common sense --

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(Laughter) --

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Revolts at the idea. Common sense.

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Finally. Before the Internet, the last great terror

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to rain down on the content industry

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was a terror created by this technology. Broadcasting:

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a new way to spread content,

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and therefore a new battle over the control

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of the businesses that would spread content.

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Now, at that time, the entity,

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the legal cartel, that controlled the performance rights

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for most of the music that would be broadcast

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using these technologies was ASCAP.

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They had an exclusive license on the most popular content,

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and they exercised it in a way that tried to demonstrate

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to the broadcasters who really was in charge.

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So, between 1931 and 1939, they raised rates by some 448 percent,

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until the broadcasters finally got together

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and said, okay, enough of this.

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And in 1939, a lawyer, Sydney Kaye, started something

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called Broadcast Music Inc. We know it as BMI.

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And BMI was much more democratic in the art

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that it would include within its repertoire,

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including African American music for the first time in the repertoire.

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But most important was that BMI took public domain works

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and made arrangements of them, which they gave away for free

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to their subscribers. So that in 1940,

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when ASCAP threatened to double their rates,

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the majority of broadcasters switched to BMI.

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Now, ASCAP said they didn't care.

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The people will revolt, they predicted, because the very best music

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was no longer available, because they had shifted

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to the second best public domain provided by BMI.

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Well, they didn't revolt, and in 1941, ASCAP cracked.

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And the important point to recognize

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is that even though these broadcasters

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were broadcasting something you would call second best,

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that competition was enough to break, at that time,

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this legal cartel over access to music.

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Okay. Three stories. Here's the argument.

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In my view, the most significant thing to recognize

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about what this Internet is doing

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is its opportunity to revive the read-write culture

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that Sousa romanticized.

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Digital technology is the opportunity

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for the revival of these vocal chords

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that he spoke so passionately to Congress about.

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User-generated content, spreading in businesses

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in extraordinarily valuable ways like these,

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celebrating amateur culture.

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By which I don't mean amateurish culture,

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I mean culture where people produce

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for the love of what they're doing and not for the money.

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I mean the culture that your kids are producing all the time.

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For when you think of what Sousa romanticized

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in the young people together, singing the songs of the day,

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of the old songs, you should recognize

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what your kids are doing right now.

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Taking the songs of the day and the old songs

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and remixing them to make them something different.

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It's how they understand access to this culture.

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So, let's have some very few examples

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to get a sense of what I'm talking about here.

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Here's something called Anime Music Video, first example,

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taking anime captured from television

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re-edited to music tracks.

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(Music)

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This one you should be -- confidence. Jesus survives. Don't worry.

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(Music)

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(Laughter)

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And this is the best.

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(Music)

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My love ...

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There's only you in my life ...

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The only thing that's bright ...

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My first love ...

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You're every breath that I take ...

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You're every step I make ...

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And I ....

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I want to share all my love with you ...

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No one else will do ...

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And your eyes ...

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They tell me how much you care ...

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(Music)

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So, this is remix, right?

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(Applause)

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And it's important to emphasize that what this is not

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is not what we call, quote, "piracy."

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I'm not talking about nor justifying

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people taking other people's content in wholesale

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and distributing it without the permission of the copyright owner.

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I'm talking about people taking and recreating

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using other people's content, using digital technologies

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to say things differently.

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Now, the importance of this

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is not the technique that you've seen here.

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Because, of course, every technique that you've seen here

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is something that television and film producers

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have been able to do for the last 50 years.

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The importance is that that technique has been democratized.

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It is now anybody with access to a $1,500 computer

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who can take sounds and images from the culture around us

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and use it to say things differently.

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These tools of creativity have become tools of speech.

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It is a literacy for this generation. This is how our kids speak.

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It is how our kids think. It is what your kids are

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as they increasingly understand digital technologies

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and their relationship to themselves.

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Now, in response to this new use of culture using digital technologies,

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the law has not greeted this Sousa revival

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with very much common sense.

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Instead, the architecture of copyright law

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and the architecture of digital technologies,

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as they interact, have produced the presumption

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that these activities are illegal.

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Because if copyright law at its core regulates something called copies,

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then in the digital world the one fact we can't escape

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is that every single use of culture produces a copy.

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Every single use therefore requires permission;

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without permission, you are a trespasser.

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You're a trespasser with about as much sense

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as these people were trespassers.

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Common sense here, though, has not yet revolted

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in response to this response that the law has offered

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to these forms of creativity.

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Instead, what we've seen

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is something much worse than a revolt.

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There's a growing extremism that comes from both sides

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in this debate, in response to this conflict

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between the law and the use of these technologies.

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One side builds new technologies, such as one recently announced

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that will enable them

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to automatically take down from sites like YouTube

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any content that has any copyrighted content in it,

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whether or not there's a judgment of fair use

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that might be applied to the use of that content.

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And on the other side, among our kids,

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there's a growing copyright abolitionism,

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a generation that rejects the very notion

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of what copyright is supposed to do, rejects copyright

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and believes that the law is nothing more than an ass

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to be ignored and to be fought at every opportunity possible.

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The extremism on one side begets extremism on the other,

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a fact we should have learned many, many times over,

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and both extremes in this debate are just wrong.

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Now, the balance that I try to fight for,

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I, as any good liberal, try to fight for first

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by looking to the government. Total mistake, right?

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(Laughter)

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Looked first to the courts and the legislatures to try to get them

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to do something to make the system make more sense.

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It failed partly because the courts are too passive,

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partly because the legislatures are corrupted,

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by which I don't mean that there's bribery

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operating to stop real change,

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but more the economy of influence that governs how Congress functions

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means that policymakers here will not understand this

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until it's too late to fix it.

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So, we need something different, we need a different kind of solution.

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And the solution here, in my view, is a private solution,

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a solution that looks to legalize what it is to be young again,

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and to realize the economic potential of that,

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and that's where the story of BMI becomes relevant.

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Because, as BMI demonstrated, competition here

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can achieve some form of balance. The same thing can happen now.

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We don't have a public domain to draw upon now,

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so instead what we need is two types of changes.

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First, that artists and creators embrace the idea,

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choose that their work be made available more freely.

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So, for example, they can say their work is available freely

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for non-commercial, this amateur-type of use,

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but not freely for any commercial use.

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And second, we need the businesses

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that are building out this read-write culture

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to embrace this opportunity expressly, to enable it,

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so that this ecology of free content, or freer content,

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can grow on a neutral platform

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where they both exist simultaneously,

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so that more-free can compete with less-free,

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and the opportunity to develop the creativity in that competition

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can teach one the lessons of the other.

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Now, I would talk about one particular such plan

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that I know something about,

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but I don't want to violate TED's first commandment of selling,

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so I'm not going to talk about this at all.

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I'm instead just going to remind you of the point that BMI teaches us.

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That artist choice is the key for new technology

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having an opportunity to be open for business,

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and we need to build artist choice here

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if these new technologies are to have that opportunity.

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But let me end with something I think much more important --

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much more important than business.

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It's the point about how this connects to our kids.

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We have to recognize they're different from us. This is us, right?

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(Laughter)

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We made mixed tapes; they remix music.

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We watched TV; they make TV.

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It is technology that has made them different,

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and as we see what this technology can do,

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we need to recognize you can't kill

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the instinct the technology produces. We can only criminalize it.

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We can't stop our kids from using it.

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We can only drive it underground.

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We can't make our kids passive again.

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We can only make them, quote, "pirates." And is that good?

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We live in this weird time. It's kind of age of prohibitions,

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where in many areas of our life,

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we live life constantly against the law.

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Ordinary people live life against the law,

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and that's what I -- we are doing to our kids.

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They live life knowing they live it against the law.

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That realization is extraordinarily corrosive,

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extraordinarily corrupting.

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And in a democracy, we ought to be able to do better.

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Do better, at least for them, if not for opening for business.

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Thank you very much.

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(Applause)