An Interview with Lawrence Lessig
November 2002

There's a joke that every time the copyrights on the first Mickey Mouse movies are about to expire, Disney manages to persuade the US congress into extending the period granted by law.
"Steamboat Willie", the little movie in which Mickey showed his ears to the world for the very first time was created in 1928. Since then the copyright period has been extended 11 times, last time by as much as 20 years, when the so called "Sonny Bono Copyright Term Extension Act" mandated that copyrights now run for 90 years.
So Disney should be able to relax right until 2018.

… That is, unless Lawrence Lessig manages to win the case he's brought to the United States' Supreme Court. Lessig is currently the most prominent proponent of openness in regards to copyright and patents on software. He's a lawyer, and a professor at Stanford, directing the university's Center for Internet and Society.
In 2001 he wrote "The Future Of Ideas", which has already become the standard book for understanding how control and openness each affect innovation and development of the possibilities of information technology.

Lessig is on a crusade against the tendency to block much of the creativity and freedom which the internet initially made possible. As he sees it, we are rapidly moving away from the internet being an open community. In stead we end up with an internet controlled by large corporations, with legions of lobbyists and lawyers at work to prevent the development of new technologies or systems that might threaten their position.
As Lessig describes it, we're going fra dot.commons to dot.control.

Power gets concentrated, the net gets locked.
This development takes place at several dfferent levels. At the physical layer it concerns the ownership of cables and the machines on the net. At the code layer it is about defining the standards, protocols and software which determine which functionality is possible on the net.
Finally there's a content-layer which concerns controlling the songs, pictures and texts that flow through the net.
At all those 3 levels Lessig sees a worrisome trend towards control and closure.

"We have had an innovation commons with an open, end-to-end architecture network, meaning that the network exercises as little control as possible over the nature of content or the appplications that run over the network. The consequence of that design is that the right to innovate for that network is held in common among anybody who has access to the network, and that in turn creates a great opportunity for all sorts of people from around the world to create and develop for this network.
Now to the extent that is taken away, by changes either at the physical layer, code layer or content layer, what's lost is this extraordinary opportunity to connect to the widest range of potential innovators and creators - and increasingly I think we are seeing exactly that loss.", says Lawrence Lessig:
"The consequence is that the right and the power to innovate for this network is re-centralized into the hands of a relatively small group of innovators, network owners, large corporations, and large holders of copyright. ".

In Lessigs opinion this will lead to slower and less dramatic innovation. The chance to contribute will increasingly be blocked for the people who have not already established some position on the network. It will be a disadvantage to smaller and developing countries in particular.
In "The Future of Ideas" Lessig points out how patents and intellectual property protection has a tendency towards helping the established to maintain their position, at the expense of newcomers trying to develop.

Culture on standby
The official name of the case that Lawrence Lessig is currently bringing to the supreme court is "Eldred vs. Ashcroft".
Lessig has sued the state on behalf of Eric Eldred, who runs a website from where you can download books which are no longer covered by copyright.

Eric Eldred was preparing to publish a string of books that were due to become "free" in 1998, but the Sonny Bono copyright term extension act effectively means that Eldred won't be able to offer any newer works for the next 20 years.
Eldred's is not the only website that has been affected. Several other major internet-projects, including the Gutenberg project and the Internet Archive, are working to make important cultural works available online.
Among the works which were just about to enter the public domain are music by Cole Porter and George Gershwin, and Hollywood classics such as "Gone with the wind".

The main argument in favour of strengthening copyright protection is that ensures those who make an effort and an investment in creating a work a sufficient period to recover that investment. Without sufficient protection there would be a risc of dampening innovation because the creators would fear that others could simply rip off their ideas.

Lawrence Lessig's counter argument is that 70 years of copyright protection is already so long a periode, that only 2 percent of all works still have any commercial value. To profit from those few works - which are already the most likely to have paid off well - the whole cultural production is locked up.
If the purpose is to stimulate creativity, at least then it shouldn't be possible to extend the period of protection for works that have already been produced. An extension according to that argument only makes sense for prospective works.

Disney hypocrisy
Lawrence Lessig understands that many people think of having to give up exclusive rights to content when it's copyright expires as violating their sense of property. But they forget that creativity and innovation always builds on the past, says Lessig:
"Most of Disney's greatest creativity is taking other peoples content and adding to it, like they did with the Grimm Brothers' Snow White and Cinderella.
I don't think there's anything wrong in Disney taking Victor Hugo's story The Hunchback of Notre Dame and making a movie out of it and not paying the Victor Hugo estate a penny, I don't think there's any legitimate complaint that the Victor Hugo state has, beyond just complaining that it was a bad movie.
But then there's one question that Disney should be asked; why should you be allowed to take from the public domain when you believe that nothing that you ever produce should be allowed to go into the public domain - and I don't think there is any answer to that hypocritical position", says Lessig.

When discussing the notion of "property" Lessig emphasizes the difference between physical objects and ideas:
"There are people who would like copyright to be forever and that you should never be allowed to use somebody's idea without their permission. Though that is certainly a possible world, it would be an extraordinarily reduced environment for creativity and innovation".

Lessig uses jazz music to illustrate his point:
"Imagine that you would need to have your lawyer get permission from some jazz performer before you could add or improvise on that performers work. It would be outrageous! And that's the intuition that has always led us to say that copyright and patents should be for a limited time and once that limit is passed then the work should pass into the public domain".

The dubious advantages of patents
The United States laws allow for patents on software. In practice European patent offices issue thousands of patents on software, even though the law does not mandate it. It's currently being debated in the EU commission and in the individual member states whether to make software patents the official law - or if one should rather attempt to end the issuing of patents on software.

Although generally pro-patent, Lawrence Lessig is wary of patents on software:
"I think all patents should be subject to the same test: Do you believe that the patent system that you would create for this new type of creativity would create more benefits than costs?
What we have seen in the context of software patents is that we have no good reason to believe that software patents are producing more good than harm. They are clearly an expensive and burdensome regulation for software developers, which is one of the reasons why some of the strongest opponents of software patents have been software developers.
While it's clear that they impose a cost, it is unclear whether they produce any benefits. Given what we know right now, I think it would be a mistake for any country or region to extend patents to software, and I hope the Europeans are more reflective about this problem than the Uniteds States have been".

Passive consumers or creative citizens
Lessig is obviously worried and pessimistic. His books and his website contains scores of stories of good ideas and useful inventions suffocating from threats of lawsuits and astronomical damage claims from companies that claim that their patents or copyrights have been infringed upon.
For Lessig it's not just that it stifles economic and technological developments. It's also a more fundamental choice between two very different cultures:
"Especially in the US we have for the last 70 years lived in a broadcast culture where the picture we have of our relationship to the production of culture is the passive consumer receiving content that is broadcast to millions of people at the same time and just selecting among options given to them.
What the internet enabled was a different image of how a citizen might interact with other citizens: not just as a consumer, but as a creator of content, being much more affirmative in their relationship to the culture that surrounds them.
That different vision of what citiziens could be is inconsistent with the business models of some of the most powerful content producers that there are today. They have a business model built on the the couch potato consumer and they are threatened by the emergence of an empowered citizen who is much more a participant and a creator", says Lessig:
"That's not to say that there isn't money to be made in the new world of citizens as particapants. It's just a different kind of system of making money than the old "dinosaurs" are used to, so they resist it. One of the choices that we should be making as a society is which picture of the citizen do we like best: the couch potato picture or the creator picture - and obviously my choice is strongly on the creator side".

But is it really that bad? Won't people always find ways to "fly under the radar"? Isn't our inventiveness so strong that it can be repressed?
"I would agree that increasingly people will fly under the radar, they will avoid restrictions and attempts to control. But I'm not sure that's a benign result. To the extent that we produce a generation of children who think of their behaviour as violating the law, going around "stealing things" that they shouldn't be, or hacking into system that they shouldn't be hacking into, we produce a certain attitude among the next generation which is that rules are out there to be broken, and you should be encouraged to go out and break them. Now I think that is a terrible result.
My response is to go out there and restate the rules so they make sense and actually encourage this type of creativity - as opposed to stifling it or forcing those who are creative to break the rules.
I have no doubt that there will always be the kind of creativity I'm talking about, the difference between the world I want to see and the world i think we are increasingly getting is that in the world I want to see, people are encouraged to be creators, there are many more who are ,and they are not engaging in an activity where they think that what they are doing is criminal", says Lessig.

Read more about Lawrence Lessig and the Eldred v.s Ashcroft case at Lessig's website: www.lessig.org