Lessig, Benenson, Mandiberg


In this talk, Lessig argues that copyright laws and policies are outdated in the context of digital culture, causing problems ultimately harming democracy. He proposes legal changes and cultural practices while refusing both copyright extremism and copyright abolitionism.

Writing is “an essentially democratic form of expression; the freedom to take and use freely is built into our assumptions about how we create what we write.” The observation that follows is that digital media has also been democratized, both in one’s access to diverse cultural content and in one’s ability to create content. It is the popular medium of the 21st century, even more so than writing.

But the traditional copyright model that tries to protect works from being copied fails to reflect the aspect of digital media which necessarily involves duplication; this over-restrains amateur freedom of use. Moreover, the war on piracy is not serving its original purpose of protecting the creator’s right, but is really just criminalizing more people.

In order to preserve the positive functions of copyright of providing incentives to the professional creator, while also pursuing the democratic value which is freedom of use, Lessig argues for a law not focusing on whether something has been copied but relying on context to determine whether something is a mere duplication or a creative remix; whether it is a professional act or an amateur act. The law should provide control over professional copies and encourage amateur remix, while there should be detailed negotiations with regards to professional remixes and amateur copying.

Piracy should not be dealt with through ineffective mass criminalization but instead through legal changes that will facilitate compensation in the current state of technology; proposals such as compulsory licenses (government-granted use without permission but involving a set fee) or the voluntary collective license (subscription-based file sharing network) should be incorporated.

Alongside these legal issues, the potential for an internet-driven hybrid economy—where economic value is created from sharing acts of people—should also be harnessed, and it should be done in a just way that minimizes exploitation; his proposal on this matter is the Creative Commons Licenses.

  • What are current challenges in your field that involve copyright and intellectual properties? One thing that comes to mind is the firewall of commercial databases that Micki mentioned.
  • With online stores for video, music and apps seemingly stabilizing as a platform, is piracy still an important issue? What are the things to think about?

On the Fungibility and Necessity of Cultural Freedom

Benenson discusses how non-copyright licensing should be approached with regards to cultural works. Some points:

  • One difference between Creative Commons and its precedents, notably the idea of Free Software and GPL, is that CCL offers more restrictive options of which the choice is up to the author; whereas Free Software puts more emphasis on keeping things open as a principle not only on the author’s side but also all along the distribution process.
  • There has been arguments for extended application of free-software principles to cultural works, which would enforce free use—something that CCL offers selectively.
  • Such “user-generated utopianism” assumes that cultural works, like tools, are fungible.
  • The fungibility of software like kernels and compilers has been crucial in the success of free software movement; this doesn’t necessarily applies to cultural works, where authorship must be valued.
  • While copyright laws must be adjusted into the contemporary context, we don’t need to completely throw them away as they do protect important values for the cultural creation.

As we are increasingly seeing works that exist across the boundaries of software/tool and cultural works, the question of articulating an appropriate mode of licensing becomes more relevant.

  • Benenson’s discussion is relying on the separate categories of software/tools and cultural/creative works. As we increasingly see works that exist across these boundaries, what would be the considerations that come into play when trying to articulate an appropriate mode of licensing these works?
  • While I can agree on Benenson’s argument that universal openness will not necessarily encourage the creation and sharing of works, the claim that “user-generated utopianism challenges us to believe that all cultural objects are effectively fungible” sounds like a hasty reduction of the logic behind Free Software advocates; I would like to hear your thoughts on this.

Giving Things Away Is Hard Work

Mandiberg examines the collaborative effect that open licensing can bring when applied to projects, especially physical designs. This approach to open licensing is summed up as the cycle where “participation breeds creative mutation, and creative mutation leads to better ideas through this collaborative process.” The insight here as I read it is that one should strategically consider both materiality and work process: the project’s functionality in its shared form, modes of collaboration, degree of access depending on skill levels, and methods of production.

The choice to go on Kickstarter for Bright Bikes was interesting, as crowdfunding platforms seem to have established an almost standardized practice of this type of approach.

As I was reading the texts, I also had the chance to get nostalgic about a project I did with some friends a couple years after the time of the articles. Our choice to go with a CC-BY license was partly logistic (putting the time and effort to deal with copyrights just didn’t make sense); but I also remember the optimistic vibe around free culture and the possibilities of internet which was very much a real thing at that time.

  • I am curious of what Benenson’s response would be to the quote relating to Lady Ada—”this is a success: the practice has become so pervasive that the origins are no longer important.” Do Fried’s contributions count as fungible tools, or do they fall into some middle grounds?


Fred Benenson, “On the Fungibility and Necessity of Cultural Freedom”; Lawrence Lessig, “REMIX: How Creativity Is Being Strangled by the Law”; and Michael Mandiberg, “Giving Things Away is Hard Work: Three Creative Commons Case Studies” in Mandiberg, The Social Media Reader, Part V: Law.


6 thoughts on “Lessig, Benenson, Mandiberg

  1. Sara Vogel, PhD. (she/her)

    With online stores for video, music and apps seemingly stabilizing as a platform, is privacy still an important issue? What are the things to think about?

    When I had initially read your question, I saw “piracy” instead of privacy — I hope that’s what you were going for, or else this response might not go with the provocation…sorry!

    Lessig’s article along with Vaidhyanatan’s book sparked in me a similar question to yours, which also gets at the extent to which these authors’ visions have stood the test of time. Vaidhyanatan is looking for the middle path between anarchy and oligarchy, two opposing tendencies which grew to characterize our relationship with the internet, both reliant on a “use technology first, ask questions later” philosophy. He argues we want the anarchist’s spirit to prevail in the sense that there’s reduced criminalization of people for doing what everyone does (pirating music), and free and open access to share, remix, and re-purpose cultural content, but we do want some of the oligarch’s guidelines and rules to provide “the stability that commerce and community demand.” Lessig’s answer to this question about how to provide both freedom and order were well-outlined by Achim here, so I won’t repeat it.

    But I wonder if since both of these articles were written (Lessig’s in 2008 and Vaidhyanatan’s in 2004), if some of these concerns around piracy — at least in the United States and the West — have been somewhat worked out in a way that, while nodding to the amateurs and encouraging their remixes, has skewed towards the oligarchic.

    Vaidhyanatan writes in 2004: “No one is likely to regulate bandwidth and access so effectively that internet users can merely receive and not distribute information — unless most of the electronic media devices in our lives undergo radical changes in structure and function.”

    I think those radical changes might have happened in the 11 years since his writing. Now, the devices people use to connect to the internet are primarily consumptive (as we talked about a few weeks ago), rather than productive. Even the laptops people are purchasing (Chromebooks and Airs) come with limited hard drive space, recognizing that people don’t mind not having a digital library or copy of a song or movie as long as they can watch or listen to it on demand for cheap, with maybe a few interruptions for advertisements along the way. I think this “on demand” mindset does not quite characterize India, Mexico, Nigeria (the three non-western cases from Vaidhyanatan’s book) but perhaps in time, it will, as internet in these places becomes more reliable and as Netflix expands its streaming services globally.

    This shift has been more oligarchic than anarchic because it’s concentrated wealth and culture into fewer hands. Thanks to streaming, my personal music library hasn’t grown much since 2008. I would make a pretty weak node on a peer-to-peer network these days. The rise of legal watching and listening hasn’t helped the artists’ bottom line very much either, as they make “micro-pennies” on each stream.

    The amateur remixing is still happening, but I’d argue that in most cases, it’s a symptom of Lessig’s hybrid economy maturing more than it is any principled form of anarchy. The masses’ creative remixing of cultural content helps sell us more stuff. Parodies of Drake’s Hotline Bling only brought more attention to Drake, who designed his video expecting people would slice out gifs, score his song to dancing cats, etc. Vaidhyanatan wrote about Napster and other peer to peer networks, in its heyday in 2004: “we are witnessing on a massive scale inconspicuous consumption and conspicuous reproduction.” I think today, as social networking facilitates sharing of every purchase and song we’ve heard on Spotify, we might be witnessing just the opposite.

    1. Jojo Karlin (she/her/hers)

      Sara and Achim-
      I’m very interested in these questions of timing — you both mention passing a time of some relationship to media sharing — the free-culture optimism of Achim’s music project and the stunted growth of Sara’s personal music collection. Vaidhyanatan’s description of the early 2000s music certainly precipitated a retrospective contemplation. I, personally, have been wondering at the ways the lack of stability of music platforms has adversely affected how I receive music. Having never been a particularly assertive music listener — I usually relied on friends to introduce me to new music — I feel as though the rapidity of changes to iTunes and shifting between music libraries and streams has left me waiting to catch up and increasingly giving up. So much of the music I had gone to the trouble of procuring has gotten glitchy through the various iTunes “improvements” that it feels like a wasted investment. But I have a distinct sadness about how immaterial so many of my favorite pieces of music seem to have become. Will there ever be the any sense of stability again?

      1. Achim Koh Post author

        Sara & Jojo,

        A hard drive in the iTunes server room just died. And yes I meant piracy not privacy! Sorry, late night writing. I guess I’m just so used to type “privacy” by now..
        I appreciate Sara’s mentioning the “radical changes” quote, it is really something to think about. On the one hand, the idea that regulating forces would want people not distributing information seems really innocent in the age of data surveillance (oops, privacy talk again).

        But more relevantly, net neutrality seems worth bringing up here—not only because it is a concept associated with access and democracy, but also because it is being worked out in a way that favors oligarchy, at least to some extent. Or maybe it is trying to regulate some oligarchies and favoring others in the process; although the distinguishing isn’t alway obvious. A recent news is that T-Mobile will provide a data plan where video streaming is free for selected partner services offering optimized (compressed) videos:

        Regarding Jojo’s mention of friends, I think that one major goal streaming services are trying to achieve is good recommendation mechanisms, where both methods of algorithmic approach (like pandora) and social networking (like last.fm) are employed. While I feel the recommendation quality is actually not so bad at this point, your mention of a sense of stability interests me. The presence and tangibility of friends, older siblings or record store owners seem to be qualities that mobile devices or streaming services are yet good at providing.

        However, recommendation algorithms are kind of replacing the job that people did. The development of this mechanism is closely aligned with the interest of the streaming economy—there’s no algorithmic recommendation in ccMixter: http://ccmixter.org/ This may be incidental, but certain developments actively pursued by and serving the interest of some oligopoly seems like something worth looking at.

  2. Teresa Ober


    I appreciate your comprehensive responses to several of this week’s readings! After reading your provocations to the Benenson’s chapter, I wanted to respond to your comments on fungibility. Fungibility refers to an aspect of a property or goods, which may be substituted or exchanged. Though not explicit in the definition, items that are fungible tend to refer to objects that serve a certain function and may be used as tools to achieve a purpose. In the case of Crawford’s “Living” the work appeared to be intended not for commercial use, and therefore was not intended to be replicable or replaceable, but rather the distribution was intended as a benefit for others living with a similar mental condition. Since intentions of utility for distributing the work, but not for reproducibility, it seemed that a breakdown in the standard licensee agreements resulted. Any object of culture or art, regardless of the medium, could be regarded similarly in that it may serve as a benefit, but the value of the object itself is a nontangible and does not seem to serve any other purpose to achieve a higher aim. That an object of culture or art is an end within itself, or is it?

    As you point out, the perspective of “user-generated utopianism” views cultural works as fungible assets. In reading this, I wondered if an object inspires another person to create, whether it is in a sense fungible because some facet, even if only minor, has been re-represented in the object that is later produced.

    Particularly of interest to me is Benenson’s argument suggesting that direct knowledge is fungible, yet cultural knowledge is not. It would seem that knowledge in any form could be either direct or cultural, depending on the intentions distributing the knowledge, the manner in which it is distributed, and how that knowledge is then interpreted and applied. Ownership of intellectual property is a challenging topic, but it would seem to really depend on the creators anticipation of its intended audience and how that audience will understand and use it.

    1. Achim Koh Post author

      Teresa, thanks for the comment!

      Your elaboration on the notion of fungibility was very helpful. It reminds me of the discourse around mechanical reproduction; how does Benjamin’s idea fit in the context where every single use of digital media seemingly involves duplication? I am tempted to see the relationship between “user-generated utopianism” and Benenson’s advocacy of authorship as a difference in perspective regarding the revolutionary potential of open licensing.

      On the other hand, I feel that Benenson’s dichotomy is questionable and your last paragraph provides a more comprehensive insight on the topic. But then maybe Benenson’s argument makes more sense when considering his question of “how free should I encourage others to make their work?” and his stance as an activist trying to resolve conflicts within the movement (though this last part is just my guess).

      Regarding ownership, just to bring up something I recently heard at an event: Kelani Nichole of Transfer Gallery talked about one of her attempted solution to digital ownership problems of digital works, i.e. how to sell digital artworks, was (to paraphrase) to provide ownership without enforcing scarcity. The example was an animated gif that could be distributed freely, but was implemented with a hash that links to a specific web domain which can be easily sold.

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