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Code + Law: An Interview with Lawrence Lessig

Legally and Technically, Hollywood Is Assaulting Some Basic Rights

by Tim O'Reilly and Richard Koman

Lawrence Lessig Lessig: "Code plus law is combining to reduce rights consumers used to have."

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Lawrence Lessig is perhaps the most prominent legal thinker on the intersection of the law and the Internet. He will deliver a keynote titled "Free Code, Freeing Culture" at the O'Reilly Peer-to-Peer Conference on Friday, Feb. 16. Lessig is a professor of law at Stanford Law School. He was the Berkman Professor of Law at Harvard Law School. From 1991-97, he was a professor at the University of Chicago Law School. His book, Code, and Other Laws of Cyberspace, is published by Basic Books. In 1999-2000, he was a fellow at the Wissenschaftskolleg zu Berlin.

Tim O'Reilly and editor Richard Koman interviewed Lessig by phone.

Tim O'Reilly: You made a statement that we've put in our conference brochure: "This is the next great thing for the Internet. We haven't even begun to understand or imagine the possibilities." What is your thinking about peer-to-peer?

Lawrence Lessig: As your conference makes plain, people have come to realize that as the power of local machines increases and as networks become always-on and easier to negotiate, the opportunity of using machines at a distance - an idea that is consistent with the original end-to-end principle of the Internet - has finally been realized. The contexts in which these could occur have begun to expand far beyond the first set of applications that we've seen in the context of sharing music. So, there is excitement about this extraordinarily underutilized resource that can begin to do work that would be extremely expensive to do if it had to be done on a single system, or work that could be done much more cheaply because it's able to be distributed. That insight is then mixed in with a traditional Internet excitement about the trouble that can be caused by this explosion of an uncontrolled or difficult-to-control architecture that facilitates that people will do what they want to do.

O'Reilly: The thing that struck me most in your book was your point that when wiretapping first came before the Supreme Court they said, "It's no problem," because the history of invasion of privacy was based on the idea of somebody actually coming into your premises. And it wasn't until 40 years later when the telephone had become truly ubiquitous and part of everyone's life that the Supreme Court revisited the issue and said "oops." That struck me as a backdrop theme for some of the rise of computer networking and a lot of the social issues that we are struggling with, where people out there on the hacker fringe for whom living on the network is daily life, have a very different view than legislators, who may not use the computer or whose secretary uses the computer. I'm wondering about your thoughts on the rise of networking and the ways that it is going to change the legal regimes that are necessary in looking forward.

Lessig: There are two stages in Internet history so far, which are important to distinguish. The first stage climaxes around 1997, when the Supreme Court decided Reno v. ACLU (the case striking down the Communications Decency Act). This case represents a time when the world looked at the Internet and said, "This is an amazing new technology that we've got to be extremely respectful of." The overriding tone of the opinion is, "Congress, you must go extremely slow when you regulate in this area to make sure that you don't muck up this extraordinarily important First Amendment free-speech context, which is the Internet."

Now that, historically, is a very surprising fact, because as your point about wiretapping brings out, before these new technologies came along, the first reaction of the judiciary was to poo-poo their significance. But in the first stage of Internet history, the Supreme Court was extremely respectful of the Internet and its potential, and there was still a very strong commitment to the idea that we not muck it up with regulations.

But now, in the second stage of Internet evolution, when it comes to copyright issues, that attitude has disappeared. So with the emergence of P2P architectures (which are being used to exchange music in ways that upset the music industry), rather than the court responding in the way that it did in Reno v. ACLU, the courts are in a knee-jerk way acting to shut down this emerging technology on the view that unless you stop it, it will be the end of copyright.

Now, the second stage of Internet history is the really dangerous response that conferences such as yours need to resist. Because to the extent the legal system perceives this new technology as focused on one particular application, then the development of this new architecture will be hampered by that one application's legal baggage. But it is as silly to think about P2P as applying just to music as it would have been to think about the Internet as applying just to pornography. Whatever the initial use of the technology, it has nothing to do with the potential of the architecture to serve many other extremely important functions.

So much of the legal battle that's going is just to get the court to be as deferential and patient with this emerging architecture as it was in the context of pornography. If you had to choose between protecting children and protecting Hollywood, you would think you would make an exception (to the law) to protect children. But, perversely, our legal system has said children are going to be left to the winds of the Internet and parents have to take care of that themselves, but we're going to march in and back up the power of Hollywood with the courts as quickly as we can to make sure that copyright interests aren't invaded.

O'Reilly: So what has caused the difference?

Lessig: The cynic in me says the lawyers defending Hollywood are better paid and they've got better suits. I think the reality is that copyright law has for a very long time been a tiny little part of American jurisprudence, far removed from traditional First Amendment jurisprudence, and that made sense before the Internet. Now there is an unavoidable link between First Amendment interests and the scope of copyright law. The legal system is recognizing for the first time the extraordinary expanse of copyright regulation and its regulation of ordinary free-speech activities.

I think that when these cases eventually work their way to the Supreme Court (if the companies that are being sued are around long enough to push them to the Supreme Court), the court will actually restore balance to this discussion in a way that will help protect innovation in the space. But now the real danger is that the recording industry has succeeded in its objective, which as Hillary Rosen (president and CEO of the Recording Industry Association of America) said, is to guarantee that no venture capitalist invests money in new modes of distribution unless Hollywood signs off. Well, that's to reinforce an old model of creativity that I think the Internet has the opportunity to destroy.

O'Reilly: What do you think about the efforts of some companies, particularly BMG, to try to come up with a solution that is more accommodating to Napster?

Lessig: I think this should be encouraged and I think a wide range of alternatives should be encouraged, but these alternatives should not all turn on the power of the industry to say yes or no. Encouraging the development of companies outside of the traditional media is an important way to make sure that the potential for innovation here is realized.

Look at, for example, the case. All was attempting to do was allow people to listen to their music more easily. It wasn't facilitating copying of anybody else's music. It was just facilitating my ability to listen to my CDs whether I'm sitting at home or work. Now, that was a pretty creative way to attempt to make the music more valuable for the consumer. There is no showing that there is an increase in the amount of music that's being stolen because of this; in fact, they were taking important steps to make sure people didn't wrongfully copy music here. But the legal system's response was to say, "absolutely willful violation of the copyright laws," and we're going to punish you as strongly as we can - something like a $100 million fine against this company - for their experimentation with different modes of facilitating distribution.

Now, if that's the legal backdrop against which innovation in this context has to occur, then you're going to see much less innovation. The one area of development where this backdrop is going to have the greatest significance is in P2P-like architectures, where you are essentially creating less easily controllable structures for facilitating the exchange of data. In a free society one would think we're not worried about that, but the point is this is anathema to the interests of the copyright industry.

O'Reilly: What you're saying effectively is that the balance is tilting too far in favor of copyright holders. Are there other cases where you know the copyright industry is trying to extend its reach at the expense of rights like fair use, and so forth?

Lessig: Well, sure. You remember when this debate about copyright in cyberspace began, it was the copyright industry racing around saying that cyberspace was going to kill us, that copyright is going to be impossible to enforce, that we need lots of new laws. And they got some new laws, including the Digital Millennium Copyright Act, which attempted to strengthen their legal rights.

Now, from the very beginning there have been people, and I have been in this chorus, who've been saying, "Wait a minute, to the extent that the architecture of cyberspace weakens the position of copyright interests, they have a handy remedy and that is the development of code that facilitates the better control of their data than exists right now."

And there were people like Mark Stefik at Xerox PARC who were sketching architectures for facilitating the control of data with trusted systems, so that copyright interests would be able to distribute their content without fearing that the content would be stolen by other people. The reason that's significant is that these trusted systems were not just efforts at making sure that the copyright interests would have the same rights that they had under copyright law, but in fact could be developed to give copyright holders more rights than they had under traditional law.

So the copyright holder could guarantee that his work would be used exactly as the copyright holder wanted, as opposed to the traditional legal structure, which is that the copyright holder has some control over the use of the work but never perfect control.

That's where the real battle is going on, as code plus law combines to reduce the rights that consumers used to have under the old copyright. The best example of this is the DeCSS case - in fact, I'm writing a brief right this minute in this case - where the Court of Appeals is going to be confronted with the question of Congress' law - the anti-circumvention provision of the Digital Millennium Copyright Act, which says that if you develop tools for cracking a copyright protection scheme, then you've violated the law. The 2nd Circuit is going to have to ask whether that law is constitutional because, in effect, it says you cannot crack copyright protection schemes even if your purpose is to allow you to have fair use of the underlying material.

So, in this case the claim is that the particular use that was facilitated by this code - DeCSS was designed to crack the encryption code CSS on DVD discs - was a completely fair use under traditional copyright law. But by banning the code, the law is effectively eliminating the fair-use protection that traditionally exists in copyright law.

Richard Koman: Can I ask you to give a traditional definition of fair use?

Lessig: Sure. The traditional idea of fair use - and the law has been extremely vague in defining this - is that the copyright owners do not have the right to perfectly control how you use their copyrighted material. You have the right under fair use to make limited free use of copyrighted material for purposes of criticism, for purposes of display, for purposes of personal consumption, and so on.

In the context of software, this has been an extremely important issue about whether you have the right to reverse-engineer software to figure out how to make it interoperable with another piece of software that you might have. The software industry has tried to say you have no right to reverse-engineer in order to make it interoperable. But the courts have been pretty good in saying that reverse-engineering is a use of the copyrighted work that should be protected, regardless of the interests of the copyright holder to protect themselves against reverse-engineering.

So, this means that you can Xerox a chapter out of a book or make a copy from an article in a journal, if you want to take it home and read it. But it doesn't allow you to, for example, copy the whole book and hand out a copy to all of your friends - that's not fair use - or for a professor to copy all of the articles he needs for his class and hand them out instead of buying the case book that is necessary for the class. The law tries to draw a distinction between uses that facilitate the distribution of this information and uses that undercut the market that the original work was designed for. That is the objective of fair use.

What is happening in the digital realm is that fair use is being coded away both through technology and through the licenses that you agree to when you sign up for some of these technologies.

A wonderful example of this is the electronic book of "Alice in Wonderland" -- this is a public domain work, first of all - and on the very first page a list of credits include the list of rights that you have purchased by getting this book (and, in fact, it was free, so you didn't purchase anything at all), it said, "You have no right to read this aloud." So basically you're not allowed to read "Alice in Wonderland" to your child at bed. That was a right you had waived or given away by virtue of getting this book from that person or from that particular company.

What's happening in digital books generally is that a whole bunch of rights that you would effectively have with ordinary books - like I could loan it to my friend, I could destroy it, I could copy a chapter out of it, I could read it to my children, I could sell it somebody else - all of those rights are erased in the digital context because these shrink wrap licenses and the code built into these books makes it impossible for you legally to give it to a friend, or to sell it to somebody afterward or to copy a chapter out of it or in this case, to read it to your child.

So what they are doing is using contracting code to restrict the rights that you used to have. The reason they can do this is that copyright law has always permitted some amount of contracting in addition to the rights granted by copyright. The fact is people didn't waste their time entering into those contracts before because they were essentially unenforceable.

You could, in principle, write whatever you want into the shrink wrap license selling the book, but what are they going to do? You can't give this to a friend, how are they going to police that? So because it is impossible to police, there is no reason to require it. But now the technology makes it so that you can begin to police it, so the copyright interest says, "We've always been able to add these restrictions. Now we're adding these restrictions and they should be as enforceable as they were before."

But the pushback to that is the context has changed so significantly that to permit you unrestricted ability to add conditions onto the distribution of this type of work is to make it so that we no longer have any balance between protection and free use or fair access. That kind of ambiguity that used to exist in the law creates the opportunity for these rights holders to expand their rights as fast and broadly as they can before the rest of us have a chance to catch up.

O'Reilly:: So do you think the market will return any sort of balance to this? When I think of, for example, software copy protection, we had a lot of similar issues in the '80s about the spread of personal computer software, and people were spending a lot of time with both copy protection on software and on licenses. There was a lot of the same kind of hysteria that it will be impossible to make money on software. And we know how false that was. Bill Gates went on to figure out some business models that work pretty darn well. Do you think that effectively this is just a period of hysteria that we'll get through as people figure out workable business models, or are we in for a real problem?

Lessig: Yes and no. I certainly think that the entertainment industry is going to be pushed to a very different model of doing business, one where the objective is to sell a much higher quantity at a lower price and not worry about theft as much. You know, when it's 5 cents for me to get a bit of music or to listen to a particular song, I'm not going to waste any time trying to steal it. I might as well pay the 5 cents as long as I can pay it extremely easily. (Editor's Note: For an opposing opinion, see Clay Shirky's The Case Against Micropayments.)

So they need to adopt a different business model and that will result in much greater content that's being distributed, but just not at the kind of prices that you're getting now. That would be good for them. So in a sense, you might say that they will voluntarily adopt that expansion or that different business model or at least if existing dominant industries don't get it, the next generation will and so it will change in any case.

But the no part of the answer is that I don't believe that the parallel to 1980s copy protection is perfectly analogous in this case. Because the technology that was used in the '80s to protect software was really very cumbersome and crude. And it elicited a lot of consumer reactions against it because there were so many times where consumers had a completely legitimate reason to want to get access to something and it was just so cumbersome that people were extraordinarily frustrated and angry about it.

That is remedied if these technologies can be developed to seamlessly and invisibly control the content and the access that people have to the content. If you can code it so that it's not cumbersome, it's invisible, it's automatically deducting money every time you do something, itŐs controlling your rights in a very smooth way. If that can be done, the industry will choose to maximize their control rather than to achieve the balance that the original copyright law achieved.

Koman: An argument that the industry would probably make is that they are limited in their ability to distribute the full range of their catalogs of music because of the limitation of radio, of video channels like MTV, and that having access to Internet technologies like Napster or webcasting, will actually let them make available to more people a much wider range of music than is currently the case.

Lessig: Yes, I think there is a story here that industry needs to focus on: about how this is a win for them. People like Michael Robertson at are attempting to sell the world on the win that Internet technology has offered to traditional media. I think that there is an unavoidable loss for traditional media that the Internet will create and that is if it goes the way Michael Robertson wants it to go, it will weaken the power of traditional media to control the artists, and the power to control the artists and control what gets distributed and in which ways is at the core of what creates the market power that the existing media has. That's the real threat that the Internet ultimately brings. It's not just about distributing content that they have, it's also about who controls where new content comes from and how it gets produced.

O'Reilly: So, going back to peer-to-peer, do you have any hopeful thoughts or are they all sort of dark thoughts about the dangers of the future?

Lessig: I have some hopeful strategic thoughts. I've been trying to talk up in as many contexts as I can the idea of using these existing forms, even Napster-like forms, to distribute content other than music - audio content, for example, people giving talks or magazines columns that are distributed as Napster MP3 files, to just muddy up in people's minds the question of what's going on on Napster. It's a very bad strategic decision, I think, that they structured it such that 99 percent of what's going on there is an exchange of music, as opposed to the great potential that is attempting: to use it for distribution of all sorts of content, most of which has no copyright connection at all. Now that's a hopeful strategic step that I think might help us weather this storm of attack about the copyright stuff.

And the other great hope is, I just saw a story today that Microsoft is developing this thing called Farsite, have you seen this?

O'Reilly: Yes.

Lessig: So here's a very large, smart institutional player who makes a decision to develop technologies to facilitate the use of this extraordinarily underutilized resource on the Net. So it would appear that file-sharing structures could be usable in a commercial context. In my book I'm very skeptical about the role that commerce is going to play in defending traditional liberties in cyberspace. But here I think the quicker we can get mainstream commerce in and doing the things that peer-to-peer makes best, the more solid the defense of peer-to-peer architecture will be.

O'Reilly: Well, it's certainly been our approach with the conference. Our goal has been to try to demonstrate the range of interesting work that people are doing with these technologies. We're really talking about the next generation of network computing, which has hundreds of thousands of applications. In fact, the music issues are a relatively small part of the conference, and I think we will see that. The question is will we see it soon enough?

Lessig: Right.

Koman: I was just wondering if you relate developments in other areas, like the attempt to copyright the human genome or the attempt of pharmaceutical companies to own organic compounds found in nature in the Third World, with this American assent to increase the scope of copyright?

Lessig: I certainly think that this is linked in the sense that the Americans have been selling this view around the world: that progress comes from perfect protection of intellectual property. Notwithstanding the fact that the most innovative and progressive space we've seen - the Internet - has been the place where intellectual property has been least respected. You know, facts don't get in the way of this ideology. This is what we've been selling.

So I do think they are linked in that sense, but I'm not against intellectual property. I'm not even sure that the attempt to patent the processes in the human genome project or in the context of developing pharmaceuticals is a bad thing. I don't know enough about the genome to be able to say that. I do know in the context of pharmaceuticals that if there is one place the patents seem to be doing good, in the sense of inducing innovation by giving a significant return to the developer, it is in the context of pharmaceuticals. So in that context it might actually be a good thing.

But our problem is that lawyers have taught us that there is only one kind of economic market for innovation out there and it is this kind of isolated inventor who comes up with an idea and then needs to be protected. That is a good picture of maybe what pharmaceutical industry does. It's a bad picture of what goes on, for example, in the context of software development, in particular. In the context of software development, where you have sequential and complementary developments, patents create an extraordinarily damaging influence on innovation and on the process of developing and bringing new ideas to market. So the particular mistake that lawyers have compounded is the unwillingness to discriminate among different kinds of innovation.

We really need to think quite pragmatically about whether intellectual property is helping or hurting, and if you can't show it's going to help, then there is no reason to issue this government-backed monopoly.

Tim O'Reilly is the founder and CEO of O'Reilly Media, Inc., thought by many to be the best computer book publisher in the world. In addition to Foo Camps ("Friends of O'Reilly" Camps, which gave rise to the "un-conference" movement), O'Reilly Media also hosts conferences on technology topics, including the Web 2.0 Summit, the Web 2.0 Expo, the O'Reilly Open Source Convention, the Gov 2.0 Summit, and the Gov 2.0 Expo. Tim's blog, the O'Reilly Radar, "watches the alpha geeks" to determine emerging technology trends, and serves as a platform for advocacy about issues of importance to the technical community. Tim's long-term vision for his company is to change the world by spreading the knowledge of innovators. In addition to O'Reilly Media, Tim is a founder of Safari Books Online, a pioneering subscription service for accessing books online, and O'Reilly AlphaTech Ventures, an early-stage venture firm.

Richard Koman is a freelancer writer and editor based in Sonoma County, California. He works on SiliconValleyWatcher, ZDNet blogs, and is a regular contributor to the O'Reilly Network.

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