Lawrence Lessig

Next up Jim and Greg play a bit of The Grey Album, a mashup of The Beatles' White Album and Jay-Z's Black Album made by DJ Danger Mouse. This was an album that received a lot of critical praise and attention. It even topped both Jim and Greg's year-end lists. It is a completely modern work that could not have been made without recent digital technologies. The rub here is that it could not be purchased anywhere, and many people who heard it don't even own a hard copy. This is because, according to current copyright law, what DJ Danger Mouse did was completely illegal. To discuss how laws like this are stifling art and how music in the digital age has changed in other ways, Jim and Greg welcome the definitive expert on this issue: Lawrence Lessig. Professor Lessig, a faculty member of Stanford Law School and founder of its Center for Internet and Society, has authored three books on cyber law and free culture, tried cases before the Supreme Court and founded Creative Commons, an organization trying to expand the range of creative work legally available to share.

While copyright laws have existed for over 200 years, music was not protected for a long time. Early in the 20th century protections for musicians and songwriters were put in place; however these laws did not necessarily hinder creativity. Once a song was recorded, anyone had the right to record it. This encouraged artists and was fundamental to the growth of the music industry, so much so that even the RIAA defended this right. The 21st century version of this kind of conversation between artists is sampling, but under current law, Professor Lessig explains, sampling is considered piracy. Therefore, creative expression and evolution are not fostered the way they were in the last century.

To demonstrate this point, Jim and Greg discuss the evolution of one song in the 20th century. Whether it was called "To the Pines," "In the Pines," or even "Where Did You Sleep Last Night," musicians like Leadbelly and Nirvana would quote and reference each other, essentially engaging in a dialogue and helping to inspire one another. This kind of songwriting and recording is the definition of a musical community and has been around since music itself. The sad truth is that such a community can't legally exist today. Listen to the songs that may have been lost had this been the case before the digital age:

• Bill Monroe - "In the Pines," recorded between 1936-1941
• Leadbelly - "In the Pines," 1947
• Bascom Lamar Lunsford - "To the Pines, To the Pines," 1949
• Joan Baez - "In the Pines," recorded between 1960 - 1963
• The Grateful Dead - "In the Mines," 1966
• Nirvana - "Where did you Sleep Last Night," 1994
• Rancho Deluxe - "In The Pines," 2005
• Smog - "In The Pines," 2005

Other versions include:

• Clifford Jordan - "Black Girl," These Are My Roots, 1965
• Mark Lanegan - "Where Did You Sleep Last Night," The Winding Sheet, 1990
• Dolly Parton - "In the Pines," Heartsong, 1994
• Louvin Brothers - "In the Pines," Tragic Songs of Life, 1956
• Youth Gone Mad feat. Dee Dee Ramone - "In the Pines," Youth Gone Mad, 2002

Digital copyright laws affect the consumer as well. In fact, Professor Lessig suggests that "creator" might be a more appropriate name. In the last century, music fans would buy music or make mixtapes, but current technology allows the listener to be a part of the creative process. The law currently treats these creative consumers, many of whom are kids, as thieves. Our guest does not condone illegal behavior, but strives to change existing laws rather than prosecute people who are hardly criminals.

In addition to changing laws, Professor Lessig recommends that record companies use the Web rather than fight it. If he ran a label he would encourage people to participate in the creative process and remix an artist's work. He would also allow and encourage artists to release their music on the internet. A small number of bands including Clap Your Hands Say Yeah and Wilco have been able to do this with really positive results. Finally, if he ran a label, he would not bite the hand that feeds him and back away from the harmful DRM technologies that labels are bundling into their content.