Lessig Fights An Uphill Battle

By Jessica Clark, In These Times. Posted February 18, 2003.

Editor's Note: Stanford Law School professor Lawrence Lessig is the nation’s leading advocate for intellectual property law reform. Lessig, the author of The Future of Ideas and Code and Other Laws of Cyberspace, also chairs the Creative Commons project, which in December introduced an alternative set of copyright licenses to allow creators to set their own terms for sharing their work. He was named one of Scientific American’s Top 50 Visionaries in 2002 for arguing “against interpretations of copyright that could stifle innovation and discourse online.”

In October, he represented online publisher Eric Eldred before the Supreme Court in the ground-breaking case Eldred v. Ashcroft, a challenge to the 1998 Sonny Bono Copyright Term Extension Act. As In These Times went to press, the court ruled 7-2 in favor of upholding the act, which Lessig had argued contradicted the Constitution’s original definition of copyright for “limited times.”

“When the Free Software Foundation, Intel, Phyllis Schlafly, Milton Friedman, Ronald Coase, Kenneth Arrow, Brewster Kahle, and hundreds of creators and innovators all stand on one side saying, ‘this makes no sense,’ then it makes no sense,” Lessig commented on his blog immediately after the ruling. “Let that be enough to move people to do something about it. Our courts will not.”

In These Times spoke with Lessig shortly before the court’s decision.

In The Future of Ideas, you suggest that the struggles over copyright legislation do not fall into the typical camps of left vs. right, but are instead a battle between old industries and new innovators. What is the common interest or vision that you think activists from different sides of the political spectrum should be fighting for?

I guess there’s a common purpose between left and right here; it doesn’t follow that the reasons are the same.

People on the left rightly are concerned about restrictions on free speech and expression that come from overly expansive intellectual property regimes, making it very hard for new artists or artists out of the mainstream to produce and distribute their art.

I think people on the right are concerned with restrictions on the ability to innovate in a commercial context, especially when those restrictions are produced by government being used to benefit special interests against the interest of the public as a whole.

So both sides have a reason to resist what’s happening, even though their motives might be different.

How do the concerns about the shrinking public domain and the privatization of the Internet affect people whose everyday struggles—for food, housing, decent employment—are more basic ... people who are on the other side of the “digital divide”?

In my view these issues are important, but starvation and war and basic human rights are certainly more important issues. I guess what motivates me here is that there’s such a fundamental opportunity for a wide range of creativity and empowerment that we’re losing because of classic interference by special interests and powerful companies. Where we have so many people on the right side of the issue, we should take it and do something good with it.

The Creative Commons is working on a Conservancy project that will allow creators to donate their works into the public domain. Why would artists, writers or scientists choose to donate their works?

Our first focus is going to be on enterprises that want to develop standards or protocols for other people to use, but that they don’t themselves want to control.

Here’s the general idea: There’s a technology called Java out there. The idea of Java was you’d be able to write a program for one platform, like the Linux platform or the Windows platform, and then it could run on any number of different platforms. So there’d be a strong desire for people to write for Java because it would lower the cost of programming.

When Sun Microsystems released Java and promised it would have this cross-platform compatibility, it faced a standard dilemma: On the one hand, if it just released Java into the public domain, then what particular companies might do is embrace and extend Java in ways that polluted the objective of the common platform, but benefited one platform like Windows or Macintosh or whatever. So it feared giving the content away.

On the other hand, if it just keeps the copyrights and everything for itself as a corporation, then what people are constantly afraid of is that, down the road, the company will impose something like a “Java tax,” meaning at a certain stage they’ll decide that it’s important for them to ...

... charge everyone who uses it in their system?

Yes, so they will be able to extract the benefit of the whole world using Java at that stage. And that could have an effect of leading people away from using Java.

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