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PRIVATE PROPERTY, THE PUBLIC USE OF CREATIVITY, AND THE INTERNET:
A Review of Lawrence Lessig's The Future of Ideas

By SONIA KUMARI KATYAL
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Wednesday, Nov. 21, 2001

America is embroiled in a complex and passionate debate about the function of intellectual property in fostering creativity and innovation on the Internet. Accordingly, a host of recent Internet-related cases — ranging from the Napster action to the indictment of Dmitry Sklyarov under the Digital Millennium Copyright Act — have garnered intense media attention.

These cases have launched a virtual culture war that rages across generations in the United States. And, at each turn, Professor Lawrence Lessig has been there, quietly invoking common sense and a respect for innovation in the face of powerful anti-piracy initiatives from Hollywood and the music industry.

Towards that end, Lawrence Lessig's new book, The Future of Ideas, is an incredible resource for anyone who wishes to grapple with the difficult intersection between private property and the public use of creativity on the Internet.

The Brave New World of the Internet: From Code to Ideas

When the Internet first took hold, attracting the attention not only of cybergeeks but of the larger world, commentators ceaselessly predicted that its technological infrastructure would mean the end of sovereignty; the end of government control over expression, and the creation of a new, borderless public space.

At that time, Lessig published Code and Other Laws of Cyberspace. In that work, he argued sensibly that the Internet created–and called for–a vastly different relationship between social norms, law, and technology. His work yielded crucial insight, contending that the Internet created a new medium that could not properly be compared to any other technological infrastructure that came before it.

Now, several years later, we are witnessing the beginning of the end of this new world of promise — and the law, at least in Lessig's eyes, is the bad guy, the sheriff who came to town to quiet the Wild West. A few months ago, as reported by Wired, Lessig made an important speech before a crowded hall of open-source programmers. "We are a house divided," he declared to the audience. "You built an extraordinary platform of innovation and creativity. My kind [lawyers] are working to shut it down."

These remarks crystallize the twin themes that are the central animating force behind Lessig's newest work: extolling the virtues of an open-source world, and exposing the vagaries of unlimited control over copyright and patent protections.

How the Law, According to Lessig, Stifles Creativity and Innovation

Lessig begins his book with a host of sobering, and powerful, examples that demonstrate the swift transformation of inspiring examples creativity and innovation into matters of legal control.

On one hand, Lessig argues, the Internet–arguably the most significant technological and cultural revolution in generations–has produced a remarkable growth in innovation. It has enabled individuals to create new forms of music, remixed films, digital art and narratives–and to share that creativity with others.

Worse, these have been able to do so without paying much, if any, attention to the importance of keeping a residual intellectual commons alive for public use. In turn, this trend of rendering intellectual property private, and not public, and extending legal control over intellectual property without any regard for "fair use" traditions, has destroyed the ability to innovate on the Internet.

Lessig's book provides a catalog of interesting vignettes to illustrate different facets of this core problem. Towards that end, Lessig touches upon architecture, communications theory, and computer science to provide a wealth of historical and judicial insight. But Lessig also provides equal weight and attention, however, to traditional economic analysis of the role of markets, property rights, and public control in this important debate.

This blend of left-leaning progressivism and free market liberalism has always been what makes Lessig so unique. As a self-confessed fan of the free market, he pushes the reader to explore the best and worst of private property. At the same time, though, he earnestly calls for regulation to strike a balance between artists' compensation and public control. In doing so, he offers us a new vision of the purpose of–and limits to–intellectual property protections on the Internet.

Compensation without Control: Towards an Architecture of Freedom

For example, an intriguing glimpse of future possibilities for the Internet can be found in Lessig's description of the "open source" movement — in which programmers contribute, without compensation, as a group to create code that they publish for others to use freely.

What would the world look like if every invention–including, but not limited to, source code–were made available for others to use, with the only condition that users, in turn, make that invention, and any improvements to it that they devise, available to everyone else too? This communitarian vision of creativity and innovation would only be possible, of course, if the legal world dramatically loosened its rein on private property regimes — and that is exactly what Lessig suggests should happen.

Expressing sympathy for "open source" ideas, Lessig argues that although artists certainly deserve compensation for their creations, they should not be rewarded with added control. At times, his argument to this effect is compelling. But at other points in The Future of Ideas, Lessig seems to unduly romanticize a "utopian," open Internet, and unfairly dismiss the interests of content providers and the lawyers who seek to defend their rights.

The Blurred Distinction Between Piracy and Creative Innovation

One problem with The Future of Ideas, accordingly, is that it gives us little help in distinguishing between piracy and creative innovation — between, for example, the cut-and-paste digital sampling of rap artists, and the multimillion-dollar counterfeit industry. Is there a place for anti-piracy in Lessig's world? The book does not provide a clear answer. Yet a theory that allows no place for anti-piracy laws has little hope of being taken seriously.

For example, just this month, a California court ruled that software code may be protected by the First Amendment. That suggests that laws that regulate code with have to survive heightened legal scrutiny — which some will inevitably fail.

Furthermore, although Napster's court dramas may have permanently derailed the service itself, the mantle of peer-to-peer file-sharing has been taken up by a host of other services that are growing at breakneck speed. These networks, unlike Napster, cannot be so easily stopped by legal control, in part because when one is terminated, another will rise in its place. Lawsuits also have the counterproductive (from the lawyers' perspective) effect of publicizing the sites and attracting users.

Granted, one thing that has not changed is that Dmitry Skylarov, the poster child of the anti-anti-piracy movement, may face indictment. Yet one need only look at the press coverage and Op Eds addressing Skylarov's situation to see that this decision has not come without significant public outcry — not just from hackers, but from lawyers too, including some writing for this site. Lawyers and law enforcement agencies may have the tools to quell certain forms of expression, but they suffer a firestorm of criticism each time they do.

A Struggle Between Old and New Worlds?

Nevertheless, despite the encouraging developments that undermine some of his doomsday predictions, it is easy to see why Lessig takes such a passionate stand in this debate. For him, the struggle is not between conservative and liberal, but between old and new.

Underlying this dichotomy, Lessig explains, is a deeper question, with political, moral, and constitutional overtones. It is a question about the fundamental values that define this society and our own intransigent attachment to private property (and in particular, private intellectual property) and content provider-based control in the face of new media.

In sum, Lessig's book provides a wake-up call. It reminds us that the expansion of property rights into the market for intellectual property on the Internet brings with it significant, negative side effects for society at large. The question of what the future of the Internet will look like, Lessig suggests, is really a question about the nature of freedom itself. And this is precisely why this book is so important–because it uses the example of the Internet to teach us something deeper, and more troubling, about ourselves.


Sonia K. Katyal is an attorney practicing intellectual property litigation in San Francisco, CA. The opinions expressed in this article are her own.

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