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Remix and cultural production.

Article Excerpt
We are pleased that our Article, The Law, Culture, and Economics of Fashion, (1) attracted a long and thoughtful response from two distinguished participants who have been so influential in this debate. The simultaneous desire for differentiation and flocking is alive and well. In their response, The Piracy Paradox Revisited, Kal Raustiala and Christopher Sprigman (RS) point out agreement on key issues, and simultaneously stress disagreement with aspects of our model, adhere to their "induced obsolescence" account of fashion trends, which we reject, and raise doubts about our policy proposal. (2) The exchange embodies the dynamics that are pervasively in tension, in creative--including academic--pursuits.

Our differences in analysis are quite fundamental. First, we identify a key distinction between close copying and remixing, and they reject the importance of such a distinction. We think the distinction is important because of the differential effects of close copies and interpretations on innovation, which we discuss at length in our article. The lumping of the two activities together under the label of "piracy" has led to confusion here and elsewhere in intellectual property. Our purpose in emphasizing the line between the two is of course not to map how current copyright law treats copying, but rather to consider what distinction would make most sense in the fashion design context, an area that current copyright law does not reach.

Highlighting the difference between close copying and remixing also helps to clarify the contours and stakes of the policy debate in other industries. In our article, we noted Lawrence Lessig's frustration that his promotion of a robust remix right in his book Remix (3) has been taken, wrongly, as a defense of piracy. (4) A recent interview on The Colbert Report makes the point vividly. Stephen Colbert asked Lessig, "You say our copyright laws are turning our kids into criminals, because they're keeping kids from doing all the remixing they want of pre-existing art and copywritten material, right? Isn't that like saying that arson laws are turning our kids into pyromaniacs? They're breaking the law!" (5) In response, Lessig pointed to the recording industry's "failed war" against teenage file-sharers. (6)

The exchange left inexplicit a crucial point: the "war" against teenagers is not properly against remixing but against file-sharing of exact copies. (7) Exact copying--not the remixing that current copyright law also considers infringement--is one reason the Virgin Megastore in Times Square has closed. (It is being replaced by a Forever 21. (8))...

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