A lawyer in a boxRevolutions often begin as the unintended consequence of some action on the part of the ruling élite. I need you to put your imagination caps on this morning, because I want to share something that I see, and it’s directly tied to a burgeoning unintended consequence.

GigaOm’s brilliant observer/writer Mathew Ingram published a piece yesterday about a copyright infringement settlement that is incredibly troubling, one that points out a significant cultural weakness of the legal system. Go read his piece, because it needs reading by all. In the case, wealthy and famous photographer Jay Maisel sued blogger Andy Baio over his (clearly) fair use of a photo of jazz great Miles Davis for a project of Baio’s that benefited Davis’s friends who performed on the original works. Baio cleared all rights, altered the cover picture, and made the project available. He failed to get Maisel’s clearance, because the work was “transformative” under fair use provisions of copyright law. Maisel disagreed.

But the real story is that Baio and his lawyers settled — for $32,500 — because it was cheaper than taking it to court. 32-grand is a LOT of money to a guy like Baio, but it’s pocket change for a man who lives in a 72-room New York landmark valued at $35 million. We all know this is wrong. We all know Baio would have won the case, but the economic reality is that it was cheaper to fork over extortion money than to challenge the issue in the courts.

Enter technology.

Many years ago, as I sat alone in my little apartment in Nashville, I had revelation after revelation about how technology could and would impact the future, both short term and long term. I wrote the stuff about media, because it’s an industry I knew, but my biggest interest was culture. I put together a lecture that I’ve given at many colleges and universities, and I will one day share here with you. The very essence of the lecture is an explanation of why the West is ripe for a revolution in the wake of the second Gutenberg moment, the introduction of a “third way” in communications. We’ve had one-to-one and one-to-many. Now, we have many to many. This is entirely new, and it’s what Jay Rosen calls “The Great Horizontal.” It forms the essence of postmodernism, “I participate, therefore I understand.”

Western culture is entirely self-centered, which is where everyone of its institutions has drifted. Each is based on the promise of success and happiness, a bargain for permitting their selfishness. The institution of “Finance,” for example, says, “You need cash to bring you what you need to be successful and happy, and you need us to give it to you.” That is a lie.

No institution ranks higher in this than the legal profession, and it’s ripe for disruption by the culture it’s supposed to serve. That it costs more than $32,000 to defend yourself against a frivolous lawsuit is absurd, but it is the system that allows it.

How will we fix this?

We will somehow build a piece of software that contains all legal knowledge, can crank out responses to highly complex situations, can create forms required for the courts, and will enable people to defend themselves against bullshit like this. It’ll be a lawyer-in-a-box, perhaps a robot, of sorts. Granted, it may be years before we see this, but we WILL see it, just as we’ll see a similar doctor-in-a-box, which will dramatically reduce health care costs. The legal profession will fight this with everything they have. After all, our lawmakers are themselves members of this institution. But the people will prevail, because the second Gutenberg moment enables government of, by and for the people even more so than the first.

You don’t think this is coming? Why do you think the American Medical Association formed a new lobbying group in the mid 90s to insure that medical information on the Web would be kept under its purview? If you think it’s not about money, think again.

Any institution whose basis for living is based on protected knowledge is doomed. The cultural disruption of Gutenberg (and John WyCliffe) was in bringing the knowledge that governed the governors to everyday people, and that’s exactly the threat today. As a 15th-Century priest said, “The jewel of the elites is in the hands of the laity.”

Here’s the thing. There is zero incentive for reformation from any institution, but then, the media didn’t disrupt itself either. That was done by the Great Horizontal and funded by upstarts with a vision. The media has fought it tooth and nail, because its fatted calf is getting slain. Want more money? Shove another commercial in front of people, audience be damned! Well, we aren’t so damned anymore, and we’re taking over a culture that badly needs reforming. Look around.

When Gutenberg had the audacity to print a Bible, it gored the fatted calf of the Roman Catholic Church, who immediately demanded a right to license such activity. After all, THEY were the keepers of the good book (and ruled as a result of it). A few years ago, we had journalism school deans ban together to request licensing for journalism. It is eerily similar, isn’t it?

I don’t know when all this will happen, but I promise that there are more cases like Baio’s out there. As word of these spreads, and smart minds grasp that there’s money to made, we will respond.

We are the people. We will be heard.


  1. Paul Skolnick says

    Hey Terry,

    What’s the difference between THIS case, and, say, AP’s claim that Shepherd Fairey infringed on its copyrighted material to make the Obama campaign poster? “Transformative” is in the eye of the beholder, and after seeing both photos side by side in Ingram’s post, I’m thinking it’s not as “transformative” as Baio may have thought–Baio used the same single shot, pixellated it a bit.

    The other recent case in the area is the “Mr. Brainwash” case —‑c.html. The artist did a whole lot more work to alter the photo, but the court held it did not rise to a “fair use” of a copyrighted photo.

  2. Thanks, Paul. Copyright laws were created for an era of fixed products. We badly need to rewrite them, because the people who are really playing on the fair use side are discovering that enforcement is a paradox. It really can be better for everybody not to play black and white. In Maisel’s case, it’s ENTIRELY about the wherewithal “to sue,” and not whether the infraction violates copyright. It’s easy money, especially for lawyers, and it’s sick. We so badly need tort reform that it’s ridiculous, but it’s impossible when the lawmakers themselves benefit from the opposite. The age of black and white is being replaced by one with grays, and there’s enough money for everybody to be happy.

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