The Open v. Closed Culture Smackdown

Nina Paley and Jaron Lanier are facing off in a friendly, public radio smackdown, debating the pros and cons of open/free culture. (Listen to the audio below). As a quick refresher, Nina Paley got a good amount of press last year when she created Sita Sings the Blues, a prize-winning animated film, and then released it to the public under a Creative Commons license. Jaron Lanier, meanwhile, is often called the “father of virtuality,” and his new book, You Are Not a Gadget, takes a fairly hardline stance against Web 2.0 and the free/open culture movement it engendered. And now the debate recorded by WNYC in NYC:

NOTE: You can find Sita Sings the Blues (and 125 other films) in our collection of Free Movies Online.

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Comments (17)
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  • Mike says:

    An interesting discussion; thanks for posting it. I have to say though, Dan, that if you were amused awhile back to see Jaron Lanier turning “open culture” into a buzzword, I am unamused to read your headline above, in which the right of artists to make a living directly off of what they create is caricatured as “Closed Culture.”

    (Was it really such a closed culture when a newspaper cost 25 cents and the newspaper business model paid the salaries of large teams of trained journalists?)

    I get a kick out of the amateur musician who calls into the radio program and says, “I’m all about free content. I think people should always give away what they have.” And the interviewer says, “You have another job then?”

    The response: “Oh yeah. Of course.”

    Nina Paley is happy making money by selling t-shirts and other merchandise and by asking people to give money to her as a donation. But many of us who make (or who have in the past made) our living from the product of our creative labors are not interested in becoming t-shirt merchants or charity causes.

    Lanier demonstrates that he is a horrible debater. Yet clearly he is the only one on the program with any sense of social responsibility, or concern for the welfare of other human beings. Paley’s social ethic is encapsulated in her statement made in response to the comments of a graphic artist who is concerned about her ability to make a living in the future. Paley says: “Whenever people say ‘I’m going to copyright my stuff’ I say ‘That’s great. You do that. You go. Because every time you lock up your stuff that makes the field wide open for my stuff.'”

    Oh yeah, of course. You go.

  • Mike says:


    Thanks for your response to my comment. I hope I didn’t come off sounding hostile to you or your website. That certainly was not my intent. This issue of how — or even whether — people are compensated for their creative work in the digital age hits close to home for me. I’m not one who likes to give personal information on a public blog, so I will just leave it at that. I too do not agree with everything Lanier says, but as a technologist and musician he has an interesting perspective. He understands the enthusiasm for the new technology but he also sees the seriousness of its unintended consequences. But many are blissfully unaware.

    I really love this website. For me it symbolises the best of the new landscape. The opportunity for lifelong learning through online university lectures and other web materials is a great thing for people. I just hope for a future where such things can exist within a system where one person’s freedom does not necessitate another person’s poverty.

  • Mike Caprio says:

    The only “people” benefiting from copyright are corporations and those who can afford the legal costs of taking every offender to court.

    It is critical to note that the legal system is infinitely extending copyright. This was not really addressed in the program. Millions of baby boomers over the next few decades will be going to their graves never having had the opportunity to remix or reuse any of the copyrighted culture they were steeped in. I’m thinking specifically of the music of The Beatles. It also looks like I may go to my own grave never being able to do anything with the music of the Beatles. So now that’s two generations who don’t get to participate in the culture they were raised in. Will my children or grandchildren get free access to the music that shaped the world? Not if corporations keep locking it up and extending copyright.

    What artists are getting money for that matter? Amanda Palmer got screwed out of income on her record deal. She’s not exactly unpopular or a starving artist, yet thousands and thousands of her albums are sold without a penny to her. And artists who work for corporations have their product seized by the corporation as work for hire – these commercial artists never own anything, get token money for their work, and often never get credited. How is that better for artists? The goal of the artist is to get an audience and have their name known. If your goal is only to get money, you’re not an artist, you’re just a worker. That’s why the musician above has a job in addition to being a musician – because he makes music for the love if making music and to play for an audience.

  • Karl Fogel says:

    Well, actually, “closed culture” is an accurate description for a monopoly-based system in which one must get permission before sharing or re-using cultural works.

    (Mike, if any of that sounds inaccurate to you, I’d like to know which part.)

    Nobody has a “right” to a particular business model. Copyright is fairly young, about 300 years old, and in its current hypertrophied form it is really only some decades old. Artists and writers have been, um, arting and writing for much, much longer than copyright has been around. That’s not surprising, given that copyright was invented as a commercial monopoly to subsidize the distribution (printing) industry, *not* as an economic basis for creativity itself. See for more about this.

    No one is arguing that artists shouldn’t be able to make a living directly off what they create. That is, in fact, what Nina Paley is doing — and she’s being very public about the numbers, too. See .

    What we are arguing is that no one should have a monopoly on the distribution and use of culture. If the word “monopoly” makes you uncomfortable, please ask yourself why, because it is a precise description of what a copyright is: a government-granted exclusive right to distribute certain information.

    That exclusive right was just a policy decision, not some kind of natural moral right. It was a decision made before the Internet existed. Now that we have a world-wide, perfect copying machine, the policy is costing us more than it ever has before — the “opportunity cost”, if you will, of copyright has risen dramatically. What Nina is doing is just demonstrating what historians of copyright have known all along: that it was not designed to provide an economic basis for creativity, and most creation is not actually supported by it anyway.

    It’s just a business model, like delivering ice in trucks. If someone invents the refrigerator, there won’t be any more ice trucks (unless the government rules that you’re not allowed to make full use of your refrigerator, which is what’s currently happening with computers and the Internet). And yet, there won’t be any shortage of ice.

    If you’re really worried that art will disappear without copyright, or that artists won’t be able to earn a living, then you haven’t been paying close attention to how artists have really made their livings all along.

  • Karl Fogel says:

    The “Mike” in my previous comment referred to the original commenter, not to Mike Caprio, just to be clear.

    Also, I’m a little… frustrated with hearing the baseless charge that those who advocate truly open culture are blissful naifs who have no understanding of the economics of cultural production, and who just think everything should cost nothing.

    Nina Paley makes her living from her art. She is in a far better position than most people on any side of this debate to claim that she’s putting her money where her mouth is, and furthermore she knows very well what the traditional restrictive-distribution route offers, since she has been in the business for a while. She’s the opposite of naive on these questions.

    And, to make it a bit more personal, I’m a published author — as in, the books are in bookstores — whose books are available under open licenses.

    So please, resist those indirect ad hominem arguments, and engage with the substance. There is no reason to assume that those who disagree with you know less than you do about the economics of cultural production. Nothing in this discussion so far gives any reason to believe there is a knowledge gap here.

  • Karl Fogel says:

    The main argument we’re making is about freedom: that it’s wrong to prevent people from sharing culture just to preserve a business model.

    But even economically, Nina’s film has done better than most independent films do. Also, Nina is holding herself out as a model, in full knowledge of what both traditional restricted distribution and free distribution offered. If she thinks she’s doing better with freedom, that’s pretty hard to argue with :-).

    Is anyone really claiming that copyright is how most art is paid for, or how most artists make their living? If there is evidence for this proposition, let’s hear it. But most of what I see around me contradicts that idea.

    It would be wrong to simply assume that because we’re used to thinking of copyright that way, it therefore actually serves that function. That would be a bit like assuming that when a legislature passes a bill called the “Clean Water Bill”, it must therefore actually be about clean water, since that’s how they want you to think of it.

  • Mark Ross says:

    It’s “recouped.”

  • Mike says:

    Mike Caprio writes: “The only ‘people’ benefiting from copyright are corporations and those who can afford the legal costs of taking every offender to court.”

    Are you kidding? I have earned my living through the production of copyrighted material for many years and I am not a corporation. I have many friends and colleagues who also make (or until recently have made) their livings by creating copyrighted works. We are/were a part of the disappearing creative middle class that Jaron Lanier talks about — and which you apparently didn’t even have a clue existed.

    Karl Fogel writes: “And, to make it a bit more personal, I’m a published author — as in, the books are in bookstores — whose books are available under open licenses.”

    And are you also gainfully employed by a private, for-profit, opensource software company that makes millions of dollars in revenue around the world by providing technical support services to a segment of the very infrastructure that makes the changes we are discussing here possible? I’m just trying to understand your true interest in this discussion, Karl.

    On one of your web pages you say you are anxious for the day when the cost (hence value) of what I and others create will “go to zero.” I wonder how you would feel if you woke up one morning to find that the value of your labor had gone to zero? What would you do then? Would you set up a PayPal account for donations? Or peddle t-shirts that say, “Out-of-Work Software Programmer/Technical Consultant”?

    Mike Caprio your comments, in contrast to Karl’s, seem ingenuous. You talk about the problem of artists toiling under abusive work-for-hire arrangements, but what you obviously don’t understand is that while the value of our copyrighted work has plummeted in the past decade (because of the digital revolution) the large corporations have gained more and more leverage over us. My colleagues and I have been increasingly forced into ever more restrictive contracts.

    As the value of copyrighted work approaches zero (to use Karl’s lovely phrase) only those who control vast blocks of it have any bargaining power. The very trend you are championing, Mike, favors the corporations over the little guy. So your opening statement (that there are no “people,” but only corporations, benefitting from copyright) is well on its way to becoming a self-fulfilling prophesy. Thanks!

    And if you doubt my statement about this trend favoring corporations, Mike, think for a moment: Do you really believe the political powers that be will one day wake up and force a corporation like 20th Century Fox, which spent $237 million making “Avatar,” to simply give their product away? The free-content singularity will not arrive. But it doesn’t have to in order to squeeze out the small independent artists who had once made their living by creating something of value (and I don’t mean t-shirts).

    Anyway, why restrict ourselves to selling t-shirts? When the demand for those dries up (because everyone is selling them) we can always sell Chiclets.

  • Barry Solow says:

    Mike (NoLastName):

    I don’t think you are denying that Nina Paley had the right to release her work under a copyleft license. Do you propose that it be forbidden in the future? My guess is that you don’t. I think you are arguing simply that copyright laws not be eliminated.

    Fair enough…but how about reformed?

    How would you feel about cutting back the length of copyrights to 10 years, or 15, or 25? It is very difficult for me to see how locking cultural works up for 80 years benefits culture and/or society. In most cases it doesn’t even benefit the descendants of the artist in any significant way.

    What about returning to a system, which would be much easier in this computer database age, of requiring that copyrights be registered? This could eliminate a great deal of uncertainty and expense in determining the owners of a copyright.

    I am also in favor of an annual fee — it could be nominal — payable by the copyright owner. It could be a tiered system — very low fees for the first couple of years, somewhat higher thereafter, escalating by small increments periodically, for the life of the copyright. This would force copyright holders to consider whether a copyright still held value for them beyond a few years.

    Under these conditions a work would be legally presumed to have been copylefted if the originator did not actively take steps to copyright it. This would set up a system where artists would have clear choices about how they wished to proceed. We would soon see, I think, a healthy competition between art-as-property infrastructures and art-as-gift institutions. As examples proliferated each artist would have a firm basis for choosing one course or the other.

    What do you think?

  • Karl Fogel says:

    Mike, what exactly do you do for a living? Would you be willing to share some of the details of how your income is made?

  • Karl Fogel says:

    By the way, I said the cost of *distribution* is going to zero. That’s a very different thing from what you (mis)read.

  • Mike Caprio says:

    Mike, how do you figure that there’s a direct correlation between “copyright violation” and corporations trying to wield more and more power over people? You think corporations wouldn’t do that without the pressure of “plummeting value”? Maybe you shouldn’t let the corporations define the value of your work and then let them decrease it whenever they see fit. Maybe you should take a look at Amanda Palmer and see how she makes more money connecting directly to her audience than she does giving all her rights to a corporation that doesn’t care one whit about her art or about culture.

    Are you seriously saying that copyright is the only thing providing you with an honest wage? How do you think people made money before copyright existed? Why is your living wage tied to the issue of culture and art? Artists make art for the purpose of making art, and maybe also showing it to an audience; collecting a salary for work is a different thing, and has little to do with art and culture. The intersection of the interests of artists and the benefits conferred to them by copyright is very small, because copyright restricts their audience from seeing their works.

    If the middle class is disappearing it’s because of class warfare, not because of people making copies of things.

    I don’t really appreciate either that you’ve completely sidestepped my points without even trying to address them. Do you really not care that the public domain is shrinking? Would you rather that corporations owned all culture? Maybe you’re only interested in collecting a salary, and not really in producing art? If such is the case, I fully understand you not caring about culture at large.

  • Dan Colman says:


    I’m glad that you came along and made those points — they pretty much sum up my position on the whole debate.


  • Mike says:

    Hi Barry,

    Yes, that’s correct: I would never object to Nina Paley’s right to do with her work as she pleases. My conviction is that she and anyone else should have the right to determine for themselves how, with whom, and on what terms they share the fruit of their creative labors.

    As for copyright reform: Yes. I would like to see the laws returned to something like the pre-1998 terms. I was opposed to the Sonny Bono Act when it passed and I’m even more irritated with it now that I can see how it has caused a younger generation (Mike Caprio, for example) to see copyright as something which is only for the benefit of corporations.

    In my view, a just copyright law is one which protects a creator’s right to preserve the integrity of his or her work and reap whatever benefits may come from it for the duration of his/her lifetime, plus some reasonable extension to provide for immediate heirs. When I say “reasonable extension,” I’m not exactly sure what that would be. Maybe the 1976 level of 50 years beyond the author’s life was too much. I don’t know. But 70 or 95 years is far too long.

    I disagree with the idea of an annual fee, and the tiered system you describe sounds horrible. It would rachet up the pressure on the copyright holder as he/she grows older and increasingly infirm. Where’s the humanity in that? In the old days there were cases in which authors with poor business acumen or lousy representation lost their copyright by missing the one 28-year renewal deadline. Are you suggesting they should now be exposed to that sort of peril on a yearly basis? Who would end up on the short end of the stick under this sort of scheme — the big corporations, with their legion of lawyers, or the little guy?

    Your comments are very interesting and constructive, Barry. Thanks.

  • Mike Caprio says:

    I’ve never seen any proof that shows that copyright benefits artists more than it does corporations. I’d love to be shown some. The only thing I’ve seen is less ownership by artists, increased power on the part of media conglomerates, and people being sued out of existence by culture monopolies.

  • Barry Solow says:


    I suspect we differ in what we understand the purpose of copyright to be.

    I believe that copyright, in the United States, was justified as a means of advancing a unique national culture. It was intended (officially, at least) to encourage cultural production by institutionalizing in a limited way the legal fiction that products of human thought can be regarded as property. The purpose was to incentivize original and creative intellectual work by giving the author of that work a restricted period of time during which she could publish it and still maintain her exclusive right to refine, revise and exploit it. I don’t believe that it is merely coincidence that the amount of time originally allotted was roughly comparable to the amount of time it takes a human being to grow into a young adult.

    I don’t believe the intention was to help insure a secure career path for artists and thinkers — any more than federal law insures such a path for teachers, bankers, pharmaceutical designers or firearms inventors. The point, it seems to me, was to provide a time during which the work could be nurtured by its creator. It would then provide benefit to society as a whole by passing into public domain.

    Therefore, I would consider 50 years far too long a time to grant exclusive rights. Therefore, too, I would favor a tiered approach to annual copyright fees (starting at, say, $25 and gradually moving up to, say, $150). The intention here is to try to assure that the creator continues to value her creation sufficiently to warrant that the rights to it not be released to the public.

    I gather from your remarks that you don’t share my interpretation of copyright — but I am not clear on what your interpretation is.

    Can you explain it to me?


  • Mike says:


    Actually, I sense that our understandings of the principles of copyright law are quite similar. I do get the idea, though, that you lack a practical understanding of what certain of the principles entail, especially when you reassert your idea of a progressive system of yearly renewal fees. And judging from the figures you quote (Did you pull them out of a hat the way a Dadaist poet chooses words?) I’d say you need to give some thought to the diversity of ways in which the material covered by these laws is created, stored and valued.

    As I understand it the fundamental rationale for copyright protection is:

    1. Creative intellectual work done by individuals and groups is beneficial to the society at large.
    2. Creative intellectual work cannot be done if the individuals and groups doing it are unable to provide for their own well-being.
    3. Therefore, the ability of individuals and groups doing creative intellectual work to provide for their own well-being is beneficial to the society at large.

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