Rhea Myers

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.