SCN: "The Future of Ideas"

[Steve]

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by Marc Rotenberg, director of the Electronic Privacy Information 
Center and co-editor of "Technology and Privacy: The New 
Landscape"  

(Salon)---A generation ago, a communications scholar named Ithiel 
de Sola Pool wrote "Technologies of Freedom: On Free Speech in 
an Electronic Age." Pool's book, which quickly became required 
reading in graduate seminars, predicted a future of interconnected 
computers. Pool imagined a world where government would no 
longer license carriage, as it did with the telephone companies, or 
content, as it did with the broadcasters. The world of networked 
computers would become the platform for new forms of commerce 
and new types of publication.  

Pool also predicted that established players would resist this 
change. They would turn to market power, existing laws and new 
theories of copyright to protect their vested interests. Government 
officials, even with the best of intentions, would also gum up the 
works with outdated policies and an inability to understand 
change. The future would be delayed, Pool warned, if the 
regulators and the regulated had their way.  

Lawrence Lessig, a Stanford law professor, picks up this story of 
the present resisting the future in "The Future of Ideas: The Fate 
of the Commons in a Connected World," a highly readable and 
deeply engaging sequel to his "Code and Other Laws of 
Cyberspace." In "The Future of Ideas," Lessig, who is perhaps 
most famous for his brief tenure as a court-appointed "special 
master" in the Microsoft antitrust trial, also sees dominant players 
exercising control through the law, technical standards and political 
might to resist the change that might otherwise take place.  

But unlike de Sola Pool, Lessig has seen a better future, which 
turns out also to be our recent past. He urges the Internet 
generation not to forget what made the last 10 years exciting: an 
open platform that did not discriminate among applications or 
content, an environment for creativity and innovation, a public 
commons for an information age. In a word: the Internet. And 
instead of calling for the removal of regulation to encourage 
freedom, he recommends that there is a place for some regulation, 
if we want to preserve liberty.  

In "The Future of Ideas" Lessig argues that future prosperity is 
impossible without the freedom to innovate -- but that freedom is 
under attack by vested interests. Lessig's effort to bind innovation 
to prosperity is as big an idea, perhaps, as Adam Smith's rebuke to 
the mercantilists in "The Wealth of Nations." Although free-market 
capitalists look to Smith as their intellectual fountainhead, Smith 
was not battling the yet-to-be-born Karl Marx in the latter part of 
the 18th century. He took aim at those who believed that a nation's 
prosperity could be measured by the gold it acquired. Prosperity, 
Smith reasoned, was an ongoing process.  

Lessig offers a similar insight about the information economy at the 
turn of the 21st century. Prosperity requires progress and progress 
requires innovation. But while some intellectual property theorists 
and the shareholders of Disney may favor the extension of 
intellectual property rights into the infinite future, the long-term 
impact of an economic system that piles high property rights, while 
burying the intellectual commons that makes progress possible, 
could be that all new forms of production grind to a halt.  

Which may actually be the aim of the major media companies. 
Copyright law, for example, has become the silly putty of media 
attorneys and Washington lobbyists, stretched in space and time 
to protect all manner of activity, including business techniques and 
technological protocols that were probably not the kinds of things 
initially envisioned by the framers of copyright law. The original 
purpose of copyright law, to promote publication, has apparently 
been lost in the rush to the courthouse, or to Geneva, where the 
World Intellectual Property Organization (WIPO) continues to 
extend property claims to ever more forms of innovations.  

Of course, copyright isn't the only domain in which the networking 
giants of today seek control. They also seek mastery of the pipes 
through which digital information flows. Unlike the common carriers 
-- railways, telephone companies and others -- who took all comers 
on a nondiscriminatory basis, the providers of new communications 
services may be less inclined to connect you to the Web sites of 
their competitors, or sell you their products. Or maybe their own 
Web pages will simply be easier to find.  

Lessig's discussion of levels of control in the information ecology 
follows from the work of NYU communications scholar Yochai 
Benkler. Benkler described the Internet as a multitiered 
environment consisting of an underlying physical layer (the wires), 
a logical layer (the protocols) and the content (the Web pages you 
view, the cable programming you receive). At each level, Lessig 
notes how the balance is tilting increasingly from freedom to 
control. And while control is necessary to create incentive, 
establish markets and encourage investment, too much control 
squashes innovation.  

Lessig tells well the story of how the recording industry set out to 
stop both MP3 and Napster. Reading the daily papers one might 
think that these companies were high-tech pirates raiding the 
vaults of the music industry. But MP3 is nothing more than a file-
compression technique, a way to move audio data across a 
communication channel where bandwidth is limited. And Napster, 
which propelled the 19-year-old Shawn Fawning to the cover of 
BusinessWeek, is based on a popular form of network architecture 
known as "peer-to-peer." The huge threat posed by file-
compression techniques and networking standards to a multibillion-
dollar industry may say more about the fragility of certain business 
models than it does about the dangers of new technology.  

Lessig's argument is compelling at many levels. It is as good a 
history of the development of Internet architecture as one is likely 
to find in a book without pictures. It is also an extraordinarily skillful 
interweaving of technical characterization and legal argument. And 
it is a story well told, with a fair balance of clever aside and clear 
purpose. Lessig wants to engage the reader in a conversation 
about the future of the Internet. 

This is not an argument that succeeds with diatribe. It is an 
argument that is undertaken in half-steps and appropriate 
acknowledgement of competing claims. Lessig works overtime to 
assure the reader that his argument for a public commons 
incorporates the concerns of conservative jurists and free-market 
theorists. Lessig is even reluctant to criticize directly the software 
giants and the architects of the controlled future, noting that they 
have obligations to stockholders.  

In "Technologies of Freedom," de Sola Pool, writing after the 
extensive FCC rulings of the 1970s, concluded that future 
networks would best be preserved by avoiding government 
regulation, and turned instead to a First Amendment view of 
publication associated with the print media that kept government 
on the sidelines. It was Pool's famous taxonomy of media that was 
in the minds of civil liberties groups when they argued to the 
Supreme Court that the Internet should be given the same 
protection as print publications. "Print plus," as one of the judges 
described the emerging world of the Internet, captured the model 
that those who favored an unfettered Internet sought.  

Lessig, writing in a period when private actors increasingly make 
the rules, concludes that there is a role for government in 
safeguarding the future. But this is not an argument for regulation 
per se. Lessig frequently turns to hybrid models that recognize a 
role for both markets and public commons, and that encourage 
experimentation. Spectrum, for example, could host both large 
broadcasters and low-power radio. Markets work well, Lessig tells 
us, when the uses are known. But where technology undergoes 
rapid change, then the assignment of a property interest may be 
premature. The wisdom of the early designers of the Internet, 
Lessig says, was in being humble enough to understand that the 
future of the network was still unknown. By keeping the platform 
open and allowing innovation at the endpoints, the future was not 
constrained.  

Lessig is particularly skeptical of property regimes that allow rights 
holders to sit on rights, such as the endlessly extended copyright 
limits that bear little relationship today to their Constitutional 
origins. He adopts the recommendation of intellectual property 
scholar Jessica Litman that copyright terms be significantly 
shortened and that rights holders be required to obtain renewals. 
This proposal should appeal to both those who favor a robust 
public domain in the abstract and the efficient allocation of 
resources in the short-term. And if anyone still cares, it is probably 
closer to the intent of the copyright clause in the Constitution.  

Many of Lessig's other proposals -- limiting imposed contracts, 
promoting a public domain, removing barriers to innovation -- 
follow sensibly from his analysis. 

One could imagine a Congress prepared to preserve innovation in 
the emerging electronic environment beyond the reach of special-
interest lobbyists and the financial pressures of modern politics. 
But that Congress is not the one that has repeatedly told the public 
the Internet "can't be regulated" to protect public interests, such as 
privacy or consumer interests, while simultaneously uncovering 
ever more creative regulation to preserve private interest. 

The No Electronic Theft Act, the Digital Millennium Copyright Act, 
the Copyright Term Extension Act and the Uniform Computer 
Information Transaction Act are just a few of the clever ways that 
legislators have found to regulate that which cannot be regulated. 
Lessig is well aware of this history, but rightly argues that it 
remains the responsibility of public officials and public agencies to 
consider how best to protect the interests of the, well, public.  

The timing of Lessig's book could hardly be more auspicious. It 
appeared the week that Microsoft announced the release of 
Windows XP, the new operating system, and the Department of 
Justice and the world's largest software manufacturer reached a 
tentative agreement on their long-running antitrust litigation. If the 
debate over the future of Microsoft moves out of the courts, then it 
will fall back to Congress and the states to consider what to make 
of a world where a small number of very large companies 
determine what the rest of us may do in the new electronic 
environment.  

Though I lodged a serious complaint, in an article for the Stanford 
Law Review, about Lessig's treatment of privacy issues in his 
earlier "Code and Other Laws of Cyberspace," I have few quibbles 
here. I continue to suspect that the rapid growth of identification 
systems, such as Microsoft's Passport, will enable the type of 
extended control over the intellectual commons that Lessig fears. 

The protection of privacy, or, more precisely, resistance to the 
compelled disclosure of identity to read books, listen to music or 
watch video in the digital world, still offers the public a critical 
counterbalance to the ever growing architecture of control. But 
there is nothing in Lessig's argument here that discounts that 
possibility. It is simply not addressed.  

More generally, it might be said of Lessig's worldview that it is so 
Internet-centric that one forgets a very similar enthusiasm for 
innovation that characterized the rise of personal computers in the 
late 1970s and the early 1980s. The pioneers in those days, like 
the heroes of Lessig's Internet history, wrote code freely, swapped 
software and made cool stuff. They operated BBSs (Bulletin Board 
Systems), created shareware and freeware and sent e-mail across 
old-fashioned telephone wires using acoustic couplers and 
computers with names like Apple II, Kaypro 10 and TRS-80. A law 
professor who needed a program to add footnotes to his word 
processor simply wrote it. The old view that production required 
capital and factories gave way to a new belief that innovation could 
take place in a garage or on a kitchen table.  

In time, companies such as Microsoft either acquired or drove out 
many of the smaller players. But while the software industry 
shakedown moved forward, the public was transfixed by the rapid 
emergence of the Internet and a new era of creativity. It could be 
that in the steady march today toward the cable companies' 
"walled garden" and the software giant's ".NET platform," there are 
the early indicators of a new revolution, what the business folks 
sometimes call "disruptive technologies."  

But there is also reason to believe that the cycle of innovation and 
consolidation may not continue endlessly. As more of the commons 
-- as more of the intellectual material of innovation -- is controlled, 
the opportunity for new forms of production is diminished. The 
monopolies of today sweep more broadly than the monopolies of 
the past. Mr. Ford may have controlled the auto industry, but he 
did not control the nation's roads. This is the warning in Lessig's 
masterly exploration of the history of the Internet and the future of 
innovation.  


Copyright 2001 Salon.com





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