Lawrence Lessig Interview · 1136 words posted 01/06/2003 05:08 PM
Lawrence Lessig is a Professor of Law at Stanford Law School and founder of the school’s Center for Internet and Society. Prior to joining the Stanford faculty, he was the Berkman Professor of Law at Harvard Law School. Lessig was also a fellow at the Wissenschaftskolleg zu Berlin, and a Professor at the University of Chicago Law School. He clerked for Judge Richard Posner on the 7th Circuit Court of Appeals and Justice Antonin Scalia on the United States Supreme Court.
More recently, Professor Lessig represented web site operator Eric Eldred in the ground-breaking case Eldred v. Ashcroft, a challenge to the 1998 Sonny Bono Copyright Term Extension Act. Lessig was named one of Scientific American’s Top 50 Visionaries, for arguing “against interpretations of copyright that could stifle innovation and discourse online.”
He is the author of The Future of Ideas and Code and Other Laws of Cyberspace. He also chairs the Creative Commons project. Professor Lessig is a boardmember of the Electronic Frontier Foundation, a Board Member of the Center for the Public Domain, and a Commission Member of the Penn National Commission on Society, Culture and Community at the University of Pennsylvania.
since1968: In Eldred v. Ashcroft, you argued that the Copyright Term Extension Act of 1998—widely seen as a gift from Sonny Bono to Disney—was unconstitutional. In essence, you said that the Supreme Court should treat the Copyright Clause as it does the Commerce Clause, since both are enumerated powers: Congress has discretion to regulate these subjects within limits set by the Constitution. Although you included empirical evidence demonstrating that limitless extensions to copyright stifle innovation, why did you choose to focus on the enumerated powers as the heart of your case?
Lawrence Lessig: In our view, the limits expressed in the copyright clause are clearer, and historically, of longer standing, than the commerce clause. That made it a natural target. It also cuts much more precisely than the First Amendment, which made us think the Court would be more likely to consider it.
[Editor’s note: Shortly after this interview was posted, the Supreme Court upheld the 20-year extension to copyright that was at the heart of the Eldred case. Plutocracy proceeds apace.]
since1968: In The Future of Ideas you argue that much of the internet’s beauty is found in its embrace of open end-to-end (e2e) technologies such as TCP/IP. Because the network is dumb, any user can connect any application to it—without anyone’s permission. Now, however, corporations such as Cisco and the cable companies are putting intelligence back into the network to the detriment of end users. For example, some sites load more quickly than others because closed networks can favor certain packets over others. Is this change better fought by technologists, addressed by legislatures, or left to markets?
Lawrence Lessig: It would be nice to have all three in the fight, and certainly best if we don’t have to involve legislatures. But I am increasingly concerned that the market is too anemic, and the technologists are too apolitical.
since1968: This summer, Malaysia and the Business Software Alliance (BSA) announced a joint initiative to crack down on software piracy. The very same week, the Malaysian Minister of Education suggested that Malaysian schools might use pirated software in classrooms because licensed software was simply too expensive. Are American debates over intellectual property relevant to the rest of the world?
Lawrence Lessig: I think all nations should recognize foreign IP rights, but the scope of those rights should be tailored to that nation’s interests. This was the tradition of IP in America. We should not insist on more from others. I very much doubt holders of software IP really want piracy in developing nations to stop completely. If it did, then the GNU/Linux operating system would have the largest user base of any in the world.
since1968: With the rise of peer to peer networks, it will be increasingly difficult for corporations to control content distribution. Put it another way: between a corporation writing new encoding rules for DVDs and a networked group of eighteen-year-olds trying to crack the codes, I will bet on the teenagers every time. Will behavior at the ends of the network outpace attempts to regulate distribution over the network?
Lawrence Lessig: I think you will always be able to do what you want at the edge of the network—if you are smart enough, or persistent enough. But I wouldn’t define that as freedom, and certainly not the freedom we need. What is necessary is the freedom of many to share and exchange content—so companies develop to support this, and artists can take advantage of this new innovation.
since1968: There’s a great passage in Jean-Paul Sartre’s childhood memoir, The Words. In it, he says that he was at his most creative when he was tracing the pictures from children’s storybooks. Would Disney recognize itself in this vision of creativity?
Lawrence Lessig: Of course. Mickey Mouse was born of Steamboat Willie. Steamboat Willie was born of Steamboat Bill, Jr.—a Buster Keaton film released the very same year. Copying, in the sense of dojinshi comics in Japan, is at the core of the process of creativity that Disney did best. Walt Disney, if not Disney, Inc., is a hero.
since1968: I’m drafting these interview questions with Microsoft Word, which uses a proprietary format to store text. Yet I can be reasonably assured that, unless you work at Sun, you won’t have problems reading and responding to the questions. Are closed systems always a bad thing?
Lawrence Lessig: No, not always. But I do think closed code is often misused. It was appropriate for you to send me a Word file, because I was adding text to the conversation. (Though given the shortness of this text, email could have done it just as well). But I am frustrated by people who send Word documents, or WordPerfect documents, that they intend simply to be read. I shouldn’t have to buy your word processor to read your words. If people were more careful to use platform neutral tools to exchange texts, we’d have a wider space for competition.
since1968: Most of my readers are independent designers and developers. In other words, they’re more likely to work for a small shop, or for themselves, than for Microsoft. What can they do to preserve openness on the Net?
Lawrence Lessig: The crucial battle right now is political. The copyright wars are political wars. And now increasingly there is a battle about whether the government will support, or allow government money to support, free software. These battles are being waged by well funded lobbyists. The political system needs a balance from not-so-well-funded citizens. At this moment, that would be a crucially important contribution.
since1968: Thank you for your time.
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