Cyberspace's Legal Visionary

Lawrence Lessig on the fate of copyrights and computer networks in the digital future.

Jesse Walker from the June 2002 issue

(Page 2 of 5)

The thing I'm most worried about is what happens as the network moves from an essentially common carriage-regulated medium to pipes that are unregulated and increasingly encouraged to discriminate for or against the content they serve.

That's a prediction of a negative consequence that will come about, and the way to test it is to see what things will resist it. One thing that would resist it is a strong competition among broadband providers, which has not happened. The other possibility would be a different kind of physical infrastructure which would compete with cable and telecom. Wireless could be a powerful competitor in providing Internet access. That would be a reason to be optimistic, if we saw a much greater embrace of that by the Federal Communications Commission.

Reason: Most of the concrete policy proposals in The Future of Ideas, especially in the areas of intellectual property and spectrum regulation, would loosen government controls. But not all of them. To what extent are you willing to use the government to enforce the idea of open architecture?

Lessig: Not unless necessary.

Reason: When do you think it becomes necessary?

Lessig: For example, when the physical layer doesn't have sufficient competition to assure that any particular actor can't behave strategically, from a competitive sense, to corrupt the core of the Internet. Then I think there's a role for the government to compensate for that lack of competition, either through open-access regimes, which have not proved successful, or through some kind of minimal rules about what it means to deliver Internet protocol packets. Companies could build the systems however they want, they wouldn't have to let anybody share their lines, but they'd have to deliver Internet protocol packets in a neutral way.

Reason: Of the economic interests you discuss, shouldn't the owners of the physical level have the strongest property claim? Wires are rivalrous and excludable, and the companies invested a great deal of money laying them.

Lessig: That's a legitimate argument. It's not simple, though, because they laid the wires in the context of protective regulation. The original monopoly deals for cable have been relaxed, of course. And if we're not talking about the Internet, I really have no concern with what cable does on their wires. They can block as much as they want; they can charge whatever they want. What I'm concerned about is what happens when cable adopts the Internet and then develops it in a way that no longer respects the end-to-end protocol. It's polluting the general standard that otherwise was producing a lot of innovation around the Internet.

Reason: How useful is it to think of intellectual property as property?

Lessig: If you're a lawyer, it's OK to think of intellectual property as property, because we're trained to use the word property in a careful way. We don't think of it as an absolute, perpetual right that can't be trumped by anybody. We understand property rights are constantly limited by public-use exceptions and needs, and in that context we understand intellectual property to be a very particular, peculiar kind of property -- the only property constitutionally required to be for limited terms. It's clearly established for a public purpose and is not a natural right.

The real problem is when people use it in the ordinary sense of the term property, which is "a thing that I have that nobody can take, forever, unless I give it to you." By thinking of it as property, we have no resistance to the idea of certain great companies controlling "their" intellectual property forever. But if we instead use terms like monopoly to describe the control that companies like Disney have over art objects like Mickey Mouse, it's harder to run naturally to the idea that you ought to have your monopoly right forever.

Another problem is the increasing ability of owners of intellectual property to control the actual use of that property. Before the network, if you bought a book, the First Sale doctrine made it impossible for the copyright owner to control what you did with it. Copyright law would not interfere with my ability to give you the book or copy a chapter or read the book a thousand times. All those things are completely within my control, partly because the law guarantees it, but also because the book producer couldn't do anything about it even if he wanted.

As you move to the Internet, though, lots more control is possible. If you look in the permissions for an Adobe eBook, it has the power to control how many times you can print certain sections of the book, whether you can use technology to read the book aloud, whether you can cut and paste sections of the book. All these controls would not have existed without digital technology, because the cost of regulating those uses would have been too high.

The convergence of this technology with rhetoric about property makes it seem increasingly natural that companies should be able to control the use of their "property" just like it seems natural that I should be able to control the use of my car. If I say you can use my car once every month, that means you can use it only once every month; you don't have the right to use it twice a month. But that's never been what intellectual property laws were about.

And now, if digital content has a built-in copy protection system, you aren't allowed to interfere with it, even if the content isn't protected by copyright laws. I have bought a number of eBooks, including Aristotle's Politics. Aristotle's Politics, of course, was never copyrighted, but the Adobe eBook reader forbids me from printing any pages of the book because the permissions have been set to disable any printing. If I try to interfere with those permissions -- if I write a bit of code to disable the limitations that forbid me from printing Aristotle's Politics from my Adobe eBook -- that would be circumventing an access technology, which under the Digital Millennium Copyright Act is a crime.