Not So Free Anymore
In 1918, the Supreme Court faced whether and how to regulate the media in the emerging era of instant news. An upstart company, International News, had built its business around taking news published in the AP’s early East Coast editions and, using telephones and telegraph, redistributing the basic facts of it under its own name. The Court responded by granting the AP, and in effect all outlets like it, a new property right in its otherwise unprotected news-gathering.
Justice Louis Brandeis dissented, arguing two key points. First, he urged the importance of information and ideas as public goods, or common resources. Ownership of “wholly private property may be absolute,” but if the property, like the news, “is affected with a public interest,” that right must be limited. Second, he described a notion legal scholars sometimes call “institutional competence”–in plain terms, a wait-and-see approach. Judges, he said, aren’t well-suited to meddle in emerging sectors of the economy, when it’s not yet clear how new property rights will affect the com-mon good. And the default rule, Brandeis argued, should be that “the noblest of human productions–knowledge, truths ascertained, conceptions, and ideas–become, after voluntary communication to others, free as the air to common use.”
International News eventually went under, but Brandeis’s opinion, like his other dissents defending free expression, outlasted its era. In The Future of Ideas: The Fate of the Commons in a Connected World, Lawrence Lessig carries the Brandeis tradition, in spirit if not by name, into the Internet age. (The book’s encyclopedic title–all ideas, forever?–is misleading: a closer fit might have been The Near Future of Cyberspace.)
Lessig’s main worry is that policymakers, eager to privatize control of the Net, have carved up a once-valuable–and uncontrolled–public resource. Lessig, who teaches law at Stanford, isn’t anti-property; he thinks that private control is often a good thing. “Without the law, the incentives to produce creative work would be vastly reduced. Large-budget films could not be produced; many books would not get written.” But “just because some control is good, it doesn’t follow that more is better,” he says. Grant innovators too much control, for too long, and the public will be deprived of the raw material of new ideas: “The new builds on the old, and hence, depends, to a degree, on access to the old.”
It’s this sense of balance, of control with clear limits, that we’ve lost in recent years, says Lessig. The early Internet’s communitarian ethos has been replaced by a notion that “progress always comes from dividing resources among private owners.” And the result of this shift toward control is not some speculative or theoretical harm, but a stifling of the Net community’s once-explosive creativity and innovation.
Like Brandeis, Lessig is a dissenter, but in a broader battle, with higher stakes. Today, lawmakers of all stripes seem eager to tighten private control over both the infrastructure and content of the Net, whose very existence owes to a collaborative programming effort. The driving force behind Internet policy is “a hunch that free resources are somehow inferior” and that decentralizing technologies are dangerous (recall Napstermania). The once-picky U.S. patent office’s indiscriminate generosity borders on regulatory promiscuity. And copyright’s duration (once 14 years, plus one renewable term) now spans the life of the author plus 70 years… and counting, since Congress seems to extend the term every time Mickey Mouse risks falling into public hands.
In the face all of this, Lessig urges restraint. Rather than treating this brand new medium with wait-and-see circumspection, “[w]e are racing to assign property rights in the air, because we can’t imagine that balance could do better.”
Reading about Internet policy can be a dull hobby. Much of what’s out there is simply rehashed Marshall McLuhan, the ’60s and ’70s communications guru who gave us such digital age koans as “the medium is the message.” (Grateful Dead lyricist John Perry Barlow’s essays, redolent of patchouli and a worn thesaurus, come to mind.) Then there are the business tracts dressed up as pop philosophy: odes to free markets and technology that, as it happens, will help make you a billionaire! Finally, there’s the technical stuff–penned by lawyers, programmers, and academics–often as bland as it is nutritious.
The Future of Ideas–sober, public-minded, yet eloquent–is an exception. I was once a student of Lessig’s, and the experience of reading The Future of Ideas is much like absorbing one of his lectures: He is a demanding but able guide, leading you through a number of theoretical and technical thickets, but always for a purpose. Lessig aims for an informed lay audience; he often seems to speak directly to the U.S. Congress, or to the high-tech boardrooms in the West. He can hold his own with both economists and engineers, and manages to explain concepts from their disciplines in everyday English. (for the most part: be prepared to learn about “nonrivalrous resources” and “802.11b protocols,” among other mouthfuls. And geekier readers can opt to frolic in the forest of endnotes, dense with nuanced qualifications, academic citations, and statistics.)
Lessig is also a talented storyteller who draws upon anecdotes and short histories to help drive his High Thoughts. He gives a clear overview of the origins and benefits of the open-source and “free” software movements. His tale of AOL-Time Warner rises above the knee-jerk merger-bashing that often passes for criticism. (The merged company’s concentration of power isn’t inherently dangerous, he argues; what’s dangerous is that power combined with the company’s apparent will to exclude others from accessing its network, which, like public roads or telephone lines, millions have come to rely on.) Lessig’s story of Microsoft’s tangles with the law–he was for a time the “special master” in the antitrust case–is must-read for anyone who never quite got it the first time around. It also exemplifies Lessig’s broader thesis: Behavior like Microsoft’s is only possible, he argues, when a company perfectly controls its software’s source code. It can thus “behav[e] strategically, by changing its code to challenge competitors. It can ‘control the pace of innovation’ because only it can muck about with its code.”
Some of the book’s factoids, while serving Lessig’s larger purpose, are just plain cool in their own right. Did you know that Native American tribes, with the help of a guy who wired the Kingdom of Tonga, may soon “be connected at higher speed than the fastest cable modems in AT&T’s labs”? Or that Hedy Lamarr, the Hollywood beauty, pioneered a way for submarines to communicate in secret–an invention that may one day help a full-on wireless Internet happen? (During World War II, Lamarr helped create a transmitter that jumped from frequency to frequency, while the receiver, programmed to anticipate the transmitter’s jumps, would tune to different frequencies accordingly. When finally perfected, this same technique will allow users to share the radio spectrum.)
Lessig’s user-friendly approach perhaps has an ulterior motive. By resisting handed-down terms of art–legalese in particular–Lessig subtly frees himself to redefine the very language of the intellectual property (IP) debate. In the process, he scrambles conventional notions of ideology as they apply to the Net.
Lessig rejects the term “intellectual property” itself as misleading. “By simplifying the nature of the rights that IP law protects, by speaking of it as property… our thinking is guided in a very particular way…. [W]e see endless arguments for strengthening IP and few for resisting that increase.” Lessig would instead describe patents and copyrights as they are: “monopoly rights”–licenses that, like grants from the crown, give their recipients an exclusive right to trade in a certain good.
Is this mere semantics? Not quite, because as capitalist godfather Adam Smith first told us, true “free” enterprise abhors monopolies. In a feat of linguistic judo, Lessig recasts the expansion of “intellectual property” as capitalism’s scourge, not its savior. He doesn’t go so far as to blame the dot-bust on the boom of private control; he is more concerned with innovation’s inherent value, and its impact on culture, than its effect on the market. He fears not just for “the innovation of Internet entrepreneurs… but also the innovation of authors or artists.”
More generally, Lessig insists that the fight over the Net’s future is “not the traditional struggle between Left and Right or between conservative and liberal.” This is not, he says, “an argument about commerce versus something else.” He quotes several free-market darlings to further his point: Friedrich von Hayek, Ronald Coase, Richard Posner, Alex Kozinski, and George Gilder all make cameos. And Lessig’s final chapter, “What Orrin Understands,” praises the Republican senator’s “concern about market power and behavior of the Microsoft Corporation” and “his affection for emerging technologies like Napster.” “Decentralized, diverse, nominated: this is the tradition Hatch defends; this is the architecture of the original Net.”
It’s not about left and right, says Lessig, but new and old, innovation and stagnation, “disrupters” and “incumbents.” The great policy question of the 21st century, “will not be which system of exclusive control–the government or the market–should govern a given resource,” but rather “for any given resource, whether that resource will be controlled or free.”
By “free,” Lessig takes care to note, he doesn’t mean zero cost. “Free, not in the sense of free beer, but free in the sense of free speech,” as Richard Stallman, founder of the Free Soft-ware Foundation, likes to put it. Compensation, says Lessig, ought to be separate from control. This is how some aspects of the music industry work: No one can stop an Austin band from recording a copyrighted song, for example, provided the band pays a fair royalty. Lessig imagines a similar kind of “compulsory licensing” scheme working across the economy of ideas. (Because of the lack of similar licensing laws governing recordings of songs, as opposed to compositions, director Wes Anderson had to cut two Beatles’ recordings from his new film The Royal Tenenbaums; he’d failed to obtain all the necessary permissions.)
The book’s only real shortcomings are its omissions. The debate over medical and biotech patents centers around Lessig’s pet themes–innovation and the commons, in one corner, property and control, in the other–yet he devotes only one footnote to pharmaceutical patents and makes no mention of AIDS drugs and the developing world. This oversight may stem, understandably, from the book’s focus on the Internet, but Lessig gives some Net-related topics short shrift, too. He dispenses with trademark law in a footnote, for example, despite its relevance to domain name disputes and the way some search engines function.
And privacy–probably the average Net user’s only real worry–barely gets a nod. Lessig stresses only the upside of information-sharing in the marketplace: the way Amazon, for example, suggests books up your alley based on your previous purchases. But there’s no mention of the booming yet largely invisible trade in consumers’ personal information. This is too bad, and a little surprising, because Lessig has made among the most innovative and thoughtful arguments regarding privacy in his columns for The Industry Standard and his previous book, Code and Other Laws of Cyberspace. Downplaying the negative consequences of “openness” in the privacy context smells like ostrich.
In general, Lessig seems so fixated with the commons and Big Brother and Big Industry that he neglects the little guy. There’s not much here about an individual creator’s right to own and control her work. He spills no ink on trade secrets and copyright work-for-hire–two doctrines that, in practice, help redistribute wealth from creative people to corporations. And Lessig never explains how, in any detail, artists and coders would get paid in his alternate universe.
Despite all that, Lessig’s got the big picture nailed. To update Brandeis: “[W]ith the increasing complexity of society, the public interest,” along with our ever-expanding web of communications, “tends to become omnipresent; and the problems presented by new demands for justice cease to be simple.” As fits the times, and its own spirit, The Future of Ideas lays out a novel argument for reevaluating the way we look at, and regulate, the Internet.
Lawyer and journalist Glenn Otis Brown is an assistant producer of “The Digital Age,” a public television show in New York (www.digitalage.org).