Lessig vs Butler

Yesterday, I was unhappy, because my computer had to make a trip to the emergency

room. Today, I am happy, because it is back and shiny and happy and has

a Tiger in the tank. With any luck,

this development will increase my blogging frequency: twice, of late, I’ve written

long and fabulous blogs only to have them eaten by a badly-timed computer crash.

One was on women artists, and the other was a letter of response to a question

posted by Larry Lessig.

Lessig knows a lot about many things, but I thought his question betrayed a

rather surprising naiveté about journalism. What happens when someone

complains about an article? Lessig seems to think that the journalist is quite

likely to bear a grudge against the complainer, and maybe even take out that

grudge with an even more unfair article in the future. Whereas most journalists

consider complaints to be evidence that they’re doing their jobs right: if you’re

not pissing anybody off, you’re not much of a journalist.

Anyway, the other shoe has now dropped,

and we now know who the journalist in question was and what she was writing

about. It’s Susan Butler, of Billboard magazine, writing about Creative

Commons and its relationship to the music industry. Her original error,

described by Lessig as "factually and fundamentally wrong", was to

say that the organisation "urges creators to give up their copyright protection

by selling their copyrights to the commons for $1". In fact, although there

once was a plan do do something along those lines, no

one ever followed through on it.

After Butler’s original article came out, Lessig asked for a correction, never

got one, and then learned that she was writing an in-depth

article about Creative Commons. Her follow-up article finally appeared on


Lessig’s original blog said that commissioning Butler to write such an article

was at worst unethical and at best bad business from Billboard’s point of view,

since "if the report is generous, it seems a way to make up; if the report

is critical, it seems grudge journalism". Remember, here, that Lessig’s

original complaint was about two sentences in an article which even he admits

mentioned Creative Commons only in passing. Whether or not you rate Butler’s

journalism, it seems unlikely that that his complaint would have driven her

to be particularly mean about him in future.

Now, we can all read Butler’s article. "Music biz wary of copyright sharing

movement" is the headline, which is undoubtedly accurate: Butler spends

a lot of time detailing the misgivings that various music-biz bigwigs have about

Creative Commons in general and Lawrence Lessig in particular.

In the end, Lessig is probably justified in feeling hard done by. Butler, it

seems, made little if any attempt to get to the bottom of the two sides’ arguments:

instead, she uncritically reproduces quotes from both Lessig and his opponents.

So when the music industry complains about "a point of view that would

take away people’s choices about what to do with their own property", she

doesn’t point out how ridiculous that is. In fact, what Creative Commons is

doing is quite the opposite: it’s giving people a wide range of choices

about what to do with their own property.

The article also ends with a completely ridiculous anecdote about Andy Fraser,

who has paid for AIDS treatment with song royalties. "Had he given up his

rights to those early hits," writes Butler, "he would not have the

resources to cover his treatment for AIDS."

What Butler knows full well is that the vast majority of Creative Commons licenses

are for non-commercial use. If Butler had attached a Creative Commons license

to his songs, it could easily have made no difference whatsoever to his royalties.

Of course, if he had allowed commercial use of his songs without any payment

to himself, he’d be worse off today. His quote is the final sentence of the

article: "No one should let artists give up their rights".

This is sloppy

journalism. It is simply a fact that artists, if they’re so inclined, can

give up their rights. Some want to do so; most don’t. But no one, to my knowledge,

is seriously advocating any kind of legislation which would prevent

artists from doing this should they be so inclined. It’s unclear whether that’s

what Fraser is asking for. But it’s also unclear what relevance his quotation

has to the argument at hand.

There are certainly powerful elements within the music industry who feel threatened

by Creative Commons: this is understandable, since CC is threatening the music

industry’s effective monopoly on music copyrights. Butler, on the other hand,

gives the final word in her article on the subject to someone who provides little

more than human interest. If he belongs anywhere in the article, it’s at the

beginning, not at the end.

All that said, however, I think that Lessig is complaining a little bit too

much about this article. We all know that the music industry and other multinational

media conglomerates have done an extremely good job at framing the debate

on copyright. And the article is not completely one-sided. Here’s the lede:

An innovative approach to sharing and licensing copyrighted material is spreading

around the globe, gathering millions of creative works under its umbrella.

And here’s the quote count: Two from David Israelite, anti-CC. One from Tim

O’Reilly, pro-CC. Two from Hal Abelson, pro-CC. One from Hilary Rosen, anti-CC

but with the caveat that she "supports the Creative Commons approach to

licensing". One from Cary Sherman, pro-CC. One from Larry Lessig, pro-CC.

One from Andy Fraser, anti-CC. And this one from Michael Sukin: "Lessig

and his followers advocate a shorter copyright term". Which comes from

an anti-CC person, but is basically just descriptive and true.

Net-net, we have four people who might be construed as being anti-CC, and four

people who are unambiguously in favour. There are four anti-CC quotes, five

pro-CC quotes, and one quote which is really neither one nor the other. Furthermore,

the quotes from the pro-CC crowd do not make them look silly, and were not taken

out of context.

Frankly, I see no evidence at all that Butler is bearing a grudge

against Lessig for complaining about her earlier article. Rather, I think she’s

talking to music-industry professionals for an article in a music-industry publication,

on a subject which is of no little concern to the music industry. It’s only

natural that a certain amount of pro-music-industry bias will creep in to such

an article. Lessig shouldn’t be getting his knickers in a twist about an article

like this: his time

is precious, and this just isn’t worth it.

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