Give Peace a Chance

Stanford University law professor Lawrence Lessig invoked a song called "War on War" by Jeff Tweedy of the band Wilco in a public discussion with Tweedy at the New York Public Library last month. The topic of their discussion--titled "Who Owns Culture?"--was the legal and artistic question of ownership posed by the advent of the Internet. A lyric from "War on War" pervaded the event: "You have to lose, you have to learn how to die, if you want to be alive."

A founder of a group called Creative Commons that promotes flexible copyright licenses, Lessig has been calling for a truce in what he calls a war over technology--a war in which big corporations are trying to prevent online piracy of copyrighted materials. In this war, he says, the pirates are not only millions of kids downloading music, but also artists involved in an online sharing of culture as part of the creative process. Lessig sees the creative process itself at risk of collateral damage.

He advocates that both sides back off long enough to see how the technology works, how artists use it to create, and how money can be made and rights protected in new, nonrestrictive ways. Rather than forcing the Internet into an existing regulatory framework, Lessig says, regulation should emerge in time and through experience to fit new technology.

Chemists and other scientists are engaged in the exact same war over technology as artists, according to Lessig. For the scientist, novel methods of research, new routes to invention, and breakthrough techniques in teaching are at stake. In response, Creative Commons launched a new venture called Science Commons earlier this year.

Scientists have also established the Public Library of Science (Lessig is on its board), and they are at the forefront of the open-source software movement, the point of which is to give things away. Clearly, science's business and institutional infrastructure needs to adapt to a world already defined by the Internet and open access.

If there is any question that the Internet has changed the music business, Tweedy's story should clear that up. When Wilco's record company, the Reprise subsidiary of Warner Brothers Records, dropped the band in 2001--the firm rejected the new album, "Yankee Hotel Foxtrot," featuring "War on War"--the band decided to stream the music on its website and go on tour. Tweedy says he was shocked when big crowds showed up at Wilco concerts singing along with songs that were commercially unreleased.

The next big surprise came when Nonesuch Records, a smaller, more entrepreneurial Warner subsidiary, heard the music, signed Wilco, and released the album despite the fact that hundreds of fans had already downloaded it from peer-to-peer websites that took the music from Wilco's site. "Yankee Hotel Foxtrot" went on to be among the most critically acclaimed records of 2002. It hit the Billboard chart at 13 and became the band's best-selling record.

Wilco's follow-up album, "A Ghost Is Born," streamed on the Wilco website months before the album was released. (Wilco allowed an independent fan website to stream a downloadable version of the album, but asked its operators to solicit donations for Doctors Without Borders. About $11,000 was raised.) The album won two Grammy Awards this year, one for best alternative rock album.

Making the music available on the Web to download hasn't cut into sales of compact discs, Tweedy said at the discussion. In fact, CD sales are up. Tweedy assumes that, like him, fans enjoy "the artifact"--the artwork, booklet, and the disc itself. (Wilco's second Grammy was for album packaging.)

As a musician, Tweedy sees the idea of blocking access to music on the Internet as absurd. "It's counterintuitive for the music industry to make it feel like a crime to listen to music," he said. He added that most musicians he knows aren't wealthy enough to feel they are being robbed online. "The only people complaining are so rich," he said, "that I don't understand why they'd ever need to be paid again."

Still, Lessig sees the legal apparatus positioned to make criminals of budding writers, musicians, and filmmakers. "Do we really want a regime that requires a set of lawyers sitting next to that kid clearing the rights for him to engage in that creativity?" he asked. "The lawyers say yes."

Congress, however, sends mixed signals. The Family Entertainment & Copyright Act, on the President's desk at press time, would allow people to edit commercial DVDs, but calls for prison terms for people distributing movies or music before commercial release.

In the sciences, keeping government, industry, and associations that publish journals in their corners until open access finds its level is a matter of ethics. "The enlightenment was about providing universal access to knowledge," Lessig told me after the event, which was sponsored by Wired magazine. Instead, he said, our culture has produced a system in which scientists give their work to expensive journals that "lock it up." The "ethics of the academy," Lessig said, is to unlock knowledge.

Perhaps the keepers of keys to locked-up culture and science need to learn how to lose this war, as Tweedy's song suggests, and how to stay alive by changing the way they do business. Because, as anyone at Warner Brothers Records will tell you, change happens.