Internet liberation theology

In "The Future of Ideas" Lawrence Lessig explains why ham-handed efforts to increase copyright protection are a threat to freedom and prosperity.

Published November 7, 2001 8:34PM (EST)

A generation ago, a communications scholar named Ithiel de Sola Pool wrote "Technologies of Freedom: On Free Speech in an Electronic Age." Pool's book, which quickly became required reading in graduate seminars, predicted a future of interconnected computers. Pool imagined a world where government would no longer license carriage, as it did with the telephone companies, or content, as it did with the broadcasters. The world of networked computers would become the platform for new forms of commerce and new types of publication.

Pool also predicted that established players would resist this change. They would turn to market power, existing laws and new theories of copyright to protect their vested interests. Government officials, even with the best of intentions, would also gum up the works with outdated policies and an inability to understand change. The future would be delayed, Pool warned, if the regulators and the regulated had their way.

Lawrence Lessig, a Stanford law professor, picks up this story of the present resisting the future in "The Future of Ideas: The Fate of the Commons in a Connected World," a highly readable and deeply engaging sequel to his "Code and Other Laws of Cyberspace." In "The Future of Ideas," Lessig, who is perhaps most famous for his brief tenure as a court-appointed "special master" in the Microsoft antitrust trial, also sees dominant players exercising control through the law, technical standards and political might to resist the change that might otherwise take place.

But unlike de Sola Pool, Lessig has seen a better future, which turns out also to be our recent past. He urges the Internet generation not to forget what made the last 10 years exciting: an open platform that did not discriminate among applications or content, an environment for creativity and innovation, a public commons for an information age. In a word: the Internet. And instead of calling for the removal of regulation to encourage freedom, he recommends that there is a place for some regulation, if we want to preserve liberty.

In "The Future of Ideas" Lessig argues that future prosperity is impossible without the freedom to innovate -- but that freedom is under attack by vested interests. Lessig's effort to bind innovation to prosperity is as big an idea, perhaps, as Adam Smith's rebuke to the mercantilists in "The Wealth of Nations." Although free-market capitalists look to Smith as their intellectual fountainhead, Smith was not battling the yet-to-be-born Karl Marx in the latter part of the 18th century. He took aim at those who believed that a nation's prosperity could be measured by the gold it acquired. Prosperity, Smith reasoned, was an ongoing process.

Lessig offers a similar insight about the information economy at the turn of the 21st century. Prosperity requires progress and progress requires innovation. But while some intellectual property theorists and the shareholders of Disney may favor the extension of intellectual property rights into the infinite future, the long-term impact of an economic system that piles high property rights, while burying the intellectual commons that makes progress possible, could be that all new forms of production grind to a halt.

Which may actually be the aim of the major media companies. Copyright law, for example, has become the silly putty of media attorneys and Washington lobbyists, stretched in space and time to protect all manner of activity, including business techniques and technological protocols that were probably not the kinds of things initially envisioned by the framers of copyright law. The original purpose of copyright law, to promote publication, has apparently been lost in the rush to the courthouse, or to Geneva, where the World Intellectual Property Organization (WIPO) continues to extend property claims to ever more forms of innovations.

Of course, copyright isn't the only domain in which the networking giants of today seek control. They also seek mastery of the pipes through which digital information flows. Unlike the common carriers -- railways, telephone companies and others -- who took all comers on a nondiscriminatory basis, the providers of new communications services may be less inclined to connect you to the Web sites of their competitors, or sell you their products. Or maybe their own Web pages will simply be easier to find.

Lessig's discussion of levels of control in the information ecology follows from the work of NYU communications scholar Yochai Benkler. Benkler described the Internet as a multitiered environment consisting of an underlying physical layer (the wires), a logical layer (the protocols) and the content (the Web pages you view, the cable programming you receive). At each level, Lessig notes how the balance is tilting increasingly from freedom to control. And while control is necessary to create incentive, establish markets and encourage investment, too much control squashes innovation.

Lessig tells well the story of how the recording industry set out to stop both MP3 and Napster. Reading the daily papers one might think that these companies were high-tech pirates raiding the vaults of the music industry. But MP3 is nothing more than a file-compression technique, a way to move audio data across a communication channel where bandwidth is limited. And Napster, which propelled the 19-year-old Shawn Fawning to the cover of BusinessWeek, is based on a popular form of network architecture known as "peer-to-peer." The huge threat posed by file-compression techniques and networking standards to a multibillion-dollar industry may say more about the fragility of certain business models than it does about the dangers of new technology.

Lessig's argument is compelling at many levels. It is as good a history of the development of Internet architecture as one is likely to find in a book without pictures. It is also an extraordinarily skillful interweaving of technical characterization and legal argument. And it is a story well told, with a fair balance of clever aside and clear purpose. Lessig wants to engage the reader in a conversation about the future of the Internet. This is not an argument that succeeds with diatribe. It is an argument that is undertaken in half-steps and appropriate acknowledgement of competing claims. Lessig works overtime to assure the reader that his argument for a public commons incorporates the concerns of conservative jurists and free-market theorists. Lessig is even reluctant to criticize directly the software giants and the architects of the controlled future, noting that they have obligations to stockholders.

In "Technologies of Freedom," de Sola Pool, writing after the extensive FCC rulings of the 1970s, concluded that future networks would best be preserved by avoiding government regulation, and turned instead to a First Amendment view of publication associated with the print media that kept government on the sidelines. It was Pool's famous taxonomy of media that was in the minds of civil liberties groups when they argued to the Supreme Court that the Internet should be given the same protection as print publications. "Print plus," as one of the judges described the emerging world of the Internet, captured the model that those who favored an unfettered Internet sought.

Lessig, writing in a period when private actors increasingly make the rules, concludes that there is a role for government in safeguarding the future. But this is not an argument for regulation per se. Lessig frequently turns to hybrid models that recognize a role for both markets and public commons, and that encourage experimentation. Spectrum, for example, could host both large broadcasters and low-power radio. Markets work well, Lessig tells us, when the uses are known. But where technology undergoes rapid change, then the assignment of a property interest may be premature. The wisdom of the early designers of the Internet, Lessig says, was in being humble enough to understand that the future of the network was still unknown. By keeping the platform open and allowing innovation at the endpoints, the future was not constrained.

Lessig is particularly skeptical of property regimes that allow rights holders to sit on rights, such as the endlessly extended copyright limits that bear little relationship today to their Constitutional origins. He adopts the recommendation of intellectual property scholar Jessica Litman that copyright terms be significantly shortened and that rights holders be required to obtain renewals. This proposal should appeal to both those who favor a robust public domain in the abstract and the efficient allocation of resources in the short-term. And if anyone still cares, it is probably closer to the intent of the copyright clause in the Constitution.

Many of Lessig's other proposals -- limiting imposed contracts, promoting a public domain, removing barriers to innovation -- follow sensibly from his analysis. One could imagine a Congress prepared to preserve innovation in the emerging electronic environment beyond the reach of special-interest lobbyists and the financial pressures of modern politics. But that Congress is not the one that has repeatedly told the public the Internet "can't be regulated" to protect public interests, such as privacy or consumer interests, while simultaneously uncovering ever more creative regulation to preserve private interest. The No Electronic Theft Act, the Digital Millennium Copyright Act, the Copyright Term Extension Act and the Uniform Computer Information Transaction Act are just a few of the clever ways that legislators have found to regulate that which cannot be regulated. Lessig is well aware of this history, but rightly argues that it remains the responsibility of public officials and public agencies to consider how best to protect the interests of the, well, public.

The timing of Lessig's book could hardly be more auspicious. It appeared the week that Microsoft announced the release of Windows XP, the new operating system, and the Department of Justice and the world's largest software manufacturer reached a tentative agreement on their long-running antitrust litigation. If the debate over the future of Microsoft moves out of the courts, then it will fall back to Congress and the states to consider what to make of a world where a small number of very large companies determine what the rest of us may do in the new electronic environment.

Though I lodged a serious complaint, in an article for the Stanford Law Review, about Lessig's treatment of privacy issues in his earlier "Code and Other Laws of Cyberspace," I have few quibbles here. I continue to suspect that the rapid growth of identification systems, such as Microsoft's Passport, will enable the type of extended control over the intellectual commons that Lessig fears. The protection of privacy, or, more precisely, resistance to the compelled disclosure of identity to read books, listen to music or watch video in the digital world, still offers the public a critical counterbalance to the ever growing architecture of control. But there is nothing in Lessig's argument here that discounts that possibility. It is simply not addressed.

More generally, it might be said of Lessig's worldview that it is so Internet-centric that one forgets a very similar enthusiasm for innovation that characterized the rise of personal computers in the late 1970s and the early 1980s. The pioneers in those days, like the heroes of Lessig's Internet history, wrote code freely, swapped software and made cool stuff. They operated BBSs (Bulletin Board Systems), created shareware and freeware and sent e-mail across old-fashioned telephone wires using acoustic couplers and computers with names like Apple II, Kaypro 10 and TRS-80. A law professor who needed a program to add footnotes to his word processor simply wrote it. The old view that production required capital and factories gave way to a new belief that innovation could take place in a garage or on a kitchen table.

In time, companies such as Microsoft either acquired or drove out many of the smaller players. But while the software industry shakedown moved forward, the public was transfixed by the rapid emergence of the Internet and a new era of creativity. It could be that in the steady march today toward the cable companies' "walled garden" and the software giant's ".NET platform," there are the early indicators of a new revolution, what the business folks sometimes call "disruptive technologies."

But there is also reason to believe that the cycle of innovation and consolidation may not continue endlessly. As more of the commons -- as more of the intellectual material of innovation -- is controlled, the opportunity for new forms of production is diminished. The monopolies of today sweep more broadly than the monopolies of the past. Mr. Ford may have controlled the auto industry, but he did not control the nation's roads. This is the warning in Lessig's masterly exploration of the history of the Internet and the future of innovation.

By Marc Rotenberg

Marc Rotenberg is director of the Electronic Privacy Information Center and co-editor of "Technology and Privacy: The New Landscape."

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