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 3 of 5)

Reason: What do you think of the argument that the code itself is protected speech?

Lessig: I think code is protected speech, although under standard First Amendment doctrine, regulation of code would be analyzed as content-neutral regulation of speech, as the Second Circuit did in the 2600 case.

This was a challenge brought by 2600, the magazine, which had been prosecuted for posting links to technology to circumvent the encryption that protects content on DVDs. There were basically two claims here. One was that the Digital Millennium Copyright Act was overbroad because it prohibited uses that were perfectly legal. Second was a much more direct challenge to the idea that you could prosecute a magazine for linking to content that might be deemed illegal.

The court of appeals basically rejected both claims. In the context of the more substantial challenge -- the challenge to the regulation being overbroad -- it applied intermediate scrutiny under the First Amendment, which meant content-neutral regulation was appropriate. It also said there was sufficient government interest that justified the regulation, in spite of the effect on speech. I think that's where the court went wrong. I think the regulation was overbroad.

Reason: That seems stricter than the standard in physical space. Paladin Press and Loompanics are allowed to publish descriptions of ways to break the law that are far more serious than de-encrypting DVDs. Yet that's protected and the code is not.

Lessig: I don't think there's a good explanation for the difference.

The view behind the Digital Millennium Copyright Act is that if you don't perfectly protect the world from bad code, it would be the end of intellectual property. If one copy of a work is unencrypted and put on the Web, there'd be no further demand for that product anywhere. As a factual matter, that's just false. Napster didn't result in the end of the CD market. In fact, many people argue that it increased the sales of CDs.

More fundamentally, it's just skewed in its way of dealing with technologies that can be used for both good and bad purposes. There is a technology called the gun, which a number of children every day are killed with. But Smith & Wesson doesn't shake in its boots waiting for the FBI to come knocking at its door, because we have adopted the view that this technology has both good and bad uses, and rather than prosecuting the technology we'll prosecute the bad users. But in the context of copyright, if the technology has good and bad uses, the good ones don't matter.

I was giving a talk at the New America Foundation. Jack Valenti from the Motion Picture Association of America stood up and talked about how awful it was that Stanford allowed a Morpheus server to exist on its network, and what did I think of this obvious technology to enable stealing? I told him I had a Morpheus server running on my machine at work, which was delivering my own content, both audio and text versions of lectures I've given. When I first made this available, the Stanford network police came in and pulled the plug on my server over the weekend because they thought I was engaging in "illegal acts." But I wasn't engaging in illegal acts. It's completely legal for me to distribute content that I have the copyright over, and this technology makes it very easy to do that.

The idea that you would assume that all uses are illegal is an overreaction to what I think is a legitimate problem. I'm not in favor of copyright theft, I'm just opposed to shutting down all technologies merely because copyright theft may occur on them.

Reason: Do we need software patents?

Lessig: I think of patents as a form of regulation, a government-granted monopoly that should only be granted to the extent that it's doing some public good. That indicates to me that when you start changing patent policy to encourage patents on software, or on business methods, you should be answering the question, Do we have good reason to believe the good that this system will produce outweighs the well-understood costs? The answer is no, we don't. At best the data are mixed, and at worse they provide a pretty good reason to believe that at least with software and business-method patents, there is no substantial increase in the innovation that could outweigh the costs of regulation. Where are the Republicans when you need them?

That doesn't mean I don't believe that no patents can justify themselves. There are plenty of contexts where we have reason to believe that they do good -- pharmaceuticals are a perfect example.

Reason: One of your more controversial claims in Code was that the Communications Decency Act, which directly censored "indecent" speech online, was actually less offensive to free speech than privately adopted filtering software.

Lessig: Between no law and good law narrowly tailored to a legitimate state interest in protecting kids from porn, I would favor narrow good law. If we had narrow regulation, you would destroy the market for this bad censorware, and you would have a much better free speech environment than you have right now.