http://www.burnsautoparts.com/blog/2010/05/10/asmpandlessig/

http://www.burnsautoparts.com/blog/2010/05/10/asmpandlessig/: "ASMP and Lessig

First off, I want to make it clear that I think ASMP is (still) a great organization made up of people who have the best intentions to help photographers. Unquestionably, that is so. They do a hell of a lot of good and I am still a proud member. Also, with the changes in the economy I applaud their efforts in trying to help the industry figure out new and better ways of exploiting the intellectual property photographers create and how they work with clients. Now is definitely the time to evolve.

That being said, I am extremely concerned about ASMP’s recent interactions with Lawrence Lessig. He was one of the speakers at the recent Copyright Symposium and, although I can understand giving “the other side” a voice, I think he needs to be ignored/silenced as much as possible. Mr. Lessig is a brilliant man, but he has done more harm to small creative businesses than any other single human in the US, in my opinion. And he continues to be dangerous.

Creative Commons and the encouragement of “sharing” instigated and promulgated by Mr. Lessig have hurt a lot of creative people. Many have lost their businesses and seen their professional dreams crushed. The idea of “free” content and “free culture” is very much his personal responsibility. His past writings and lectures indicate he did intend exactly what he has achieved culturally, to the detriment of small creative businesses. See the wikipedia entry on the Free Culture movement, and this video of Lessig himself at copybyte.com/z/w4 .

Recently, however, Mr. Lessig has (sort of) changed his tune. He is now claiming that he was trying to get the idea of licensing to the masses and that his intention was to fight against the big business corporate “abuse” of copyright. I’m skeptical. While he may be anti-corporatism (a good thing in my book), I think he still does not see the needs of the little guy and, thus, his idea of balance is off.

For example, he still speaks out against the laws eliminating arcane formalities in order for protections to apply. He claims, in the video cited above, that requiring the formalities was good because it limited how much IP is protected (reducing the number of IP monopolies). He claims that extending copyright terms has no justification (in originalist constitutional policy) but rather was based in modern big corporatism (he doesn’t even consider the extension of the human lifespan over the past 200+ years as well as how there are new methods of exploitation). And sure, Disney benefits by these laws, but so does Bob’s Photography. He misses that completely.

He spins the issue very well, as a good lawyer should, especially an academic one like him. Yes, we need to find new approaches to exploiting the rights of photographers (& other creatives), but his way has most definitely not been the way. Yes, copyright may impede some creative growth, but what about all the incredible creative growth we have seen thus far in our society? Growth done WITH these “onerous” copyright laws? More and more creativity just as the laws have gotten “worse” in his view. How is that possible, Mr. Lessig?

Additionally, at the end of the video cited above, please note that Lessig talks about his new crusade: anti-corruption. Gosh that sounds great, but when you look more closely at what he is saying, it seems to me that it is more of a call to anarchy. He mentions earlier in the lecture that he thought he’d win in front of the Supreme Court and when he didn’t, he discredited the rationale and thinking of the court. Then, he talks about how we have relied on courts to interpret our laws and how maybe that isn’t such a good idea anymore. Really? We should overturn centuries (going back to the Magna Carta, and beyond, really) of reliance on the rule of law as interpreted by people who have devoted their lives to the law and, instead, let the people decide? Really? The same people who think President Obama is a foreigner and that Palin is smart?

To paraphrase Monty Python (The Meaning of Life), the people are not qualified to make the decisions the courts make. Interpretation of the law is a highly specialized intellectual skill (I’m definitely learning that in law school!). Although we (the people in general) have access to more and more information on diverse topics, the knowledge of the people is paper thin in depth, quite often. We the people do not know everything and although we know more than ever we often do not know well that “more.” For example, I know enough about how a combustion engine works to be able to tell my mechanic that I think the problem is in the fuel system, but I am not at all qualified to repair my car.

Moreover, we have to have some faith that our institutions, as flawed as they may be, will continue to work. That’s fundamental to society– faith that the systems we have created will work. So, yes, the courts get it “wrong” sometimes, but they get it right far, far more often (we just don’t hear about the right as much in the news). I cite the state of California for how not having faith in our systems and letting the people decide mean that nothing ever gets done. Here in California, the people vote on proposition after proposition, overturning what the legislature does, meaning well but not really understanding the issues and ramifications of the details of the propositions, and then complaining when the system doesn’t work. Well duh! It’s no wonder this state is circling the drain in many ways (although it is a huge shame).

My point (albeit a bit rambling) is that Lessig knows how to push a listener’s buttons to make his ideas sound not only reasonable, but good. Just like it sounds like a great idea for Californians to get to vote on every issue, in reality, it makes things worse. Lessig’s arguments about stifling creativity sound very good, but they are well spun and ignore the reality that creativity has hardly (if at all) been stifled by the laws we have. We, as an industry, must not be taken in.

I hope, most sincerely, that Mr. Lessig has indeed seen the errors of his ways and that he will now contribute to improving the lives of creative professionals. He owes it to them after the damage he has caused via CC, etc. But he has not fundamentally changed his tune, just his spin. And until he proves himself no longer a real enemy to the best interests of photographers and other small creative businesspeople (and I do not use the word “enemy” lightly!), we should not entrust him to be anything other than that which he has proven to be.

This entry was posted on Monday, May 10th, 2010 at 8:28 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
38 Responses to “ASMP and Lessig”

1. Tweets that mention Burns Auto Parts blog » Blog Archive » ASMP and Lessig -- Topsy.com Says:
May 10th, 2010 at 10:45 am

[...] This post was mentioned on Twitter by photo blog feeds, Bargin Auto Parts. Bargin Auto Parts said: Burns Auto Parts blog » Blog Archive » ASMP and Lessig: First off, I want to make it clear that I think ASMP is (s… http://bit.ly/b0vZZP [...]
2. Don Giannatti Says:
May 11th, 2010 at 9:27 am

I love this post. Huglely love this post.

I have been against the so called ‘Creative Commons” from the beginning. It is a thinly veiled rights grab, and the most detrimental single thing to come along in commercial and non-commercial art in decades.

The rants of those who declare that ‘information wants to be free” are there in the books you must buy to read. Hypocritical? Devious? Or simply an intellectual lapse into absurdity?

Warning photographers of the uncomfortable union of someone who actually wants to eliminate the IP to property because it will benefit corporations seems somewhat dangerous to me. Remember who brings the biggest knife to the knife fight… it ain’t gonna be the photographer.

The new ’softer, gentler’ Lessig is no less ingenuous, no less insidious, and no less dangerous. The spin is new, the message is the same…

“You make it, we get to use it… get out of our way.”

I am hoping and working toward a time when we can tell this sort of goofball to hit the road, but giving him a voice within a group who stand to lose the most makes the battle even harder.

Great post, excellent points well stated. I will be tweeting and referencing this article like crazy.

BTW, I do hope that people who may not share your political opinions are welcome to comment… :-)
3. info Says:
May 11th, 2010 at 2:02 pm

A reminder to anyone wishing to comment: I do NOT, by policy, approve anonymous comments. If you wish to be heard, you have to identify yourself. Thank you for playing.
-Leslie
4. Steve Says:
May 11th, 2010 at 2:59 pm

He spins the issue very well, as a good lawyer should, especially an academic one like him.

I don’t agree that a “good lawyer should” “spin the issue very well.” The practice of law (and, for the most part, I don’t consider academic work to be the practice of law) are not about “spin”; they are about justice, following the law, and doing the right thing.

It’s very easy for an academic to make all kinds of waves from a comfortable, easy academic position with tenure. I’m not impressed.
5. Is Creative Commons a Rights Grab? | PlagiarismToday Says:
May 12th, 2010 at 1:07 pm

[...] May 12th, 2010 • Category: Articles, PunditryMarketer and Consultant Leslie Burns-Dell’Acqua wrote a lengthy post on her blog about the American Society of Media Photographers’ (ASMP) recent “interactions” [...]
6. Brandon Says:
May 12th, 2010 at 2:31 pm

Unfortunately, the problem isn’t Lessig. It’s the fact that the digital age has taken something scarce (the quick identification and development of ideas, especially those of a “creative” nature) and made it plentiful. Designers, photographers, whatever all have to compete with an extra 6-7 billion people connected the world over. What value does your idea have if others are coming up with it somewhere else in the world where first-world copyright laws have no meaning?
7. Andrew W Says:
May 12th, 2010 at 2:35 pm

Maybe you write of it elsewhere, but could you say a little bit about your argument that a Creative Commons license hurts photographers and small businesses? I’ve used them quite a bit with some success: it’s me saying how I want my work to be used and others agreeing to follow it. For example a photographer could use a CC license with great effect, it seems, by licensing a low resolution version of a photo with “Attribution Share Alike” and the high res version with “Attribution Non-Commercial No Derivatives”.

Also I’d be interested in hearing some stories of photographers who’ve lost their businesses due to these licensing schemes. (Full disclosure, I’ve worked with some of Lessig’s colleagues at Harvard’s Berkman Center, but it doesn’t necessarily mean I disagree with you.)
8. info Says:
May 12th, 2010 at 2:36 pm

@Brandon
I disagree. Sure, there are many people who are shooting now that weren’t before, but they aren’t really competition, especially not for assignment photographers. Someone who happens to get a good stock image isn’t any competition to a pro photographer who can put together a production, concept a visual solution, and make it all happen every time the client calls.
People said desktop publishing would kill designers. It didn’t. Same thing here. The low end is gone (in both design and photography), but that is a good thing I think.
-Leslie
9. arvind s grover Says:
May 12th, 2010 at 2:46 pm

I’m a teacher, photographer, webcaster, blogger. All of my work is in the Creative Commons. As a result my work has been used by many people, particularly my photos and my audio recordings. I was paid for none of those. But that’s how I licensed them. I could have chose a traditional copyright, and likely no one would have purchased them either.

As a result of sharing so widely I’ve received developed a brand for myself which earned me numerous consulting opportunities, conference speaking engagements, and my first conference keynote this year.

You don’t need to be scared of Lawrence Lessig or the Commons. I’ve met incredible people being part of it (including Lawrence), and really feel like I’m part of something for the benefit of anyone. I don’t think I’m a saint, I just make helpful work available to people for free.

The Commons is about finding a license that works for you. If it doesn’t work, it doesn’t work. Again, no need to be scared, just don’t participate if you’re not interested.
10. Stephen Jenkins Says:
May 12th, 2010 at 2:51 pm

While I disagree strongly with your thesis, I understand that the issue is personal for you, and I was at least following your line of thought until this statement:

“Creative Commons and the encouragement of “sharing” instigated and promulgated by Mr. Lessig have hurt a lot of creative people. ”

How on earth is giving content creators the ability to license their work in EXACTLY the manner they choose “hurting a lot of creative people”!?!

It feels like you are misunderstanding the concept of free culture, or are confusing it with spec work. The movement is not about destroying copyright, it’s about concerned citizens re-evaluating the role copyright in light of a technological revolution that is changing the way we play/live/work like never before.

It’s about my choice to put my photography, my music, my video, my ideas into the hands of my peers and fellow creators around the world and letting them re-use, re-mix, and re-interpret my work according to my specific preferences. Lessig has given this movement a legal grounding and done a great service to millions of Americans that have become completely disenfranchised with a copyright system that was not designed to serve creators, but to perpetually enrich shareholders – who do you think Sonny Bono’s biggest donors were?

It’s sad to see attitudes like yours. I’m sure you are committed to your craft, and I’m sure you do excellent work, but you are clinging to the status quo, even as the world is changing around you.
11. info Says:
May 12th, 2010 at 2:54 pm

Okay… this post has hit the ether and I’m getting inundated with comments. To reiterate the STANDING POLICY (started long ago): no comments will be approved without some identifying info–usually that is in the form of a website or an email addy that is not just @gmail or @genericwhatever.

Getting lots of hate and I won’t post without the person identifying him/herself.
-Leslie
12. Mick O Says:
May 12th, 2010 at 2:58 pm

You write: “My point (albeit a bit rambling) is that Lessig knows how to push a listener’s buttons to make his ideas sound not only reasonable, but good.”

You know how he does this? Using actual examples. I would like to know some specific examples how Creative Commons have hurt actual small businesses. If you wish to make your arguments compelling, please cite some examples of businesses that have gone out of business, but would still be in business if Creative Commons has never existed.

I am curious.
13. Dan Tobias Says:
May 12th, 2010 at 3:11 pm

How, exactly, is a Creative Commons license that only applies to works whose legal owners (usually the creators) have *chosen* to release them under such a license somehow “stealing” from the creators? How, exactly, is extending the copyright term from 50 years after the death of the author to 70 years after the death of the author a necessary adaptation to longer life spans? (People now live 20 more years past their deaths???)
14. On IP Law – Feeding The Machine Says:
May 12th, 2010 at 3:20 pm

[...] This is in response to this post [...]
15. Tero Tilus Says:
May 12th, 2010 at 4:02 pm

I’d like to hear stories about people who “have lost their businesses and seen their professional dreams crushed.”
16. Stephen Jenkins Says:
May 12th, 2010 at 4:22 pm

Leslie,

I stand by my comment above, but in the interest of avoiding any kind of “hate” (I don’t hate you, I’ve never met you!) could you perhaps clarify your feelings towards speculative or amateur work? I feel like this is where a lot of your concern lays, and I know there are a lot of creative professionals that would side with you.

For example:

You invest $8k in a digital camera body, and another $5k in lenses, $4k in lighting equipment, etc. Your wedding photography business is booming year after year, until you notice that you are losing jobs to photographers you have never heard of in your area.

These photographers are young, have little formal training, are using $2k cameras and kit lenses – and generally producing acceptable if not excellent results.

You and I both know your photos would probably be more attractive, your equipment and experience would lead to stronger staging, better lighting, etc

But the COST of entry into professional or semi-professional photography has fallen so much in the last 5 years that now you have amateurs charging $900 for what you used to be able to charge $4500 for – AND they are giving the client all the digital negatives in RAW format – no strings attached! While some clients may recognize the value you provide up front and still choose your services, many will be attracted to low prices and the promise of total control over the photos.

This trend is happening in graphic design, web design, videography, programming, etc.

As cheaper technology and software enables new generations of amateurs to compete with professionals – there emerges a strong (that’s an understatement!) backlash against crowdsourcing, amateur work, and speculative work. This protest usually emanates from industries fearful of losing jobs, losing work, and being overtaken by a faster, younger, cheaper workforce – albeit less experienced, and perhaps less refined.

The challenge of professionals is to find ways to differentiate themselves from “cheap or free labor”. If you are so proud of your services, why not just let your work speak for itself?

I know this comment was less about CC and more about speculative/contest and amateur work, but I wonder if at the end of the day that is more where your real frustration lays.

Either way, change is unavoidable. Adapt or perish.

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