Lessig Fights An Uphill Battle

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.

That’s the thing that we think we’re able to solve with something like the Conservancy, because if you give us the intellectual property, we’ll protect it against being abused by others. We would make the content available under an appropriate license to keep people from polluting it—but also no one would fear that we would impose something like a Java tax, because we’re a nonprofit that would not be permitted to do that.

That’s one part. Then there’s a group of people who we expect, for the same reason that people give money to land trusts, will just have a desire to help fuel the public domain—people like Tim O’Reilly of O’Reilly Press, which has donated a significant chunk of its stuff under the Founders Copyright [a voluntary copyright of 14 years], are expressing a view that copyright doesn’t serve a useful function after so many years. And when that’s true, then they ought to make the material available to others.

What we’re discovering is that there are lots of both altruistic and self-motivated reasons why people would want to be supporting work entering into a public domain or into a commons, and we’re just trying to enable them to do that. We’re eager to find generous sorts who want to support it through altruism, but also we’re realistic that the greatest works in the world are not necessarily altruistic.

There was an assumption with the early Internet that if you provide users with enough free content, they’ll become engaged with that content and it will gain value. Has that concept been discredited to some extent?

No, I think that’s a critical lesson of what the Internet did. The way I would put it is that people think about a commons typically as threatened by what’s called the “tragedy of the commons,” which is too many people exploiting the resource with the consequence that the resource becomes depleted.

The tragedy of the commons, though, only can happen with resources that are what economists call “rivalrous”— meaning when you use the resource, I can’t. With resources that are not rivalrous—like ideas—the fact that I used the resource does not interfere in any way with your ability to use the resource, and instead of there being a tragedy of the commons, there can actually be something like the comedy of the commons.

An October Wired article mentioned that you’ve called for a “million bit march” on Washington. What might that look like?

There’s a lot of activism around these issues, and that activism has grown from just a bunch of geeks, to a bunch of people who are quite strongly connected to the artistic and music and film industries, to people who are very eager to support growth in technology. All of these people have a strong interest in advancing freedoms of creativity and innovation in the context of the Internet.

And so what we imagine is that, using the Internet, we can create enough political speech out there that the politicians need to begin to pay attention.

Do you think that the kinds of in-your-face experiments like the Illegal Art show, where people skirt the law to make a point about where the boundaries are, are helpful or harmful to these kinds of struggles?

Oh, I think it’s very helpful. I think that ordinary people have no clue about the way in which intellectual property affects creative expression. People think that copyright is unambiguously pro-creativity. And a thing that scholars of copyright have known forever is that copyright is an important part of inducing creativity, but it also can, quite fundamentally, interfere with the creative process if, in fact, it becomes too strong or too extensive.

And I think, especially once digital technologies take off, people don’t really have a good sense of the extent to which copyright regulates creative activities using digital technology in a way that it really wouldn’t have regulated it so much outside of digital technology.

Where should people be focusing their energies right now in the fight to keep regulation at bay and establish a public commons?

I think there’s a huge issue around defending the right to fair use that would be very useful for people to focus on. How that happens—whether it’s through statutes that are going to protect fair use or not, I’m not sure yet—but the importance of getting access to content and being able to share content, I think, is going to be increasingly important, and we just have to make sure that people who have a vision of the 20th century don’t control the way creativity in the 21st century happens.

Jessica Clark is an Associate Publisher at In These Times.

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