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>Lawrence Lessig: The Thought Leader Interview
>By Lawrence M. Fisher
>The Stanford University law professor and cyberadvocate redefines the
>parameters of the Internet.
>Photography by John Blaustein
>Amid the chorus of techies and Web heads proclaiming that cyberspace is
>inherently immune to regulation, a lone voice has consistently insisted quite
>the opposite. Indeed, Stanford University law professor Lawrence Lessig has
>written that the Internet is rapidly succumbing to a triad of ill-considered
>law, restrictive technology, and commercial monopolization that threatens its
>very existence as a platform for freedom, innovation, and growth.
>Powerful interests seek to control how and what is distributed over the
>Internet. This control, Professor Lessig argues, will destroy the platform
>gave rise to new forms of businesses (like Amazon.com and eBay) and new forms
>of expression (from Salon.com to Usenet newsgroups), unless forceful
>countermeasures are taken soon.
>Professor Lessigís outspoken commentary has earned him both admirers and
>detractors. Stewart Brand, founder of the Well, an early Internet community,
>has said, ìLawrence Lessig is a James Madison of our time, crafting the
>lineaments of a well-tempered cyberspace. Like Madison, Lessig is a model of
>balance, judgment, ingenuity, and persuasive argument.î
>But Professor Lessig was dismissed as special master in the U.S. Department of
>Justiceís antitrust case against Microsoft after the software company claimed
>he was biased. Judge Thomas Penfield Jackson was also believed to have based
>his decision to split the company in two on a friend-of-the-court brief later
>written by Professor Lessig. That decision was subsequently reversed by the
>Professor Lessig refutes the accepted wisdom that the Internet is an organic
>and uncontrollable medium. To the contrary, he argues that the Net owes its
>very existence and continued viability to a fragile set of freedoms that
>protect its openness in the three dimensions of architecture, infrastructure,
>and content. Each is under constant and insidious attack.
>Professor Lessig recently talked with strategy+business, at his office at
>Stanford Law School, about the ideas and arguments from his new book, The
>Future of Ideas: The Fate of the Commons in a Connected World (Random House,
>2001), and his vision for a future of competition that will realize the Netís
>full potential as a catalyst for creativity and innovation.
>S+B: Many CEOs ask why the commercialization and closing of the Internet is a
>threat to the way they do business, or important to them in other ways.
>LESSIG: The fundamental reason to be worried about the Internet changing is if
>it alters the environment for innovation, it will limit corporate growth
>future. To the extent weíve seen a slowdown, I think a substantial amount can
>be attributed to the restrictions Iím seeing. The CEO would be concerned about
>a new tax on the Internet; these are equivalent effects from a different
>source. I believe the slowdown in the technology sector can be explained
>increasing regulation, if you include copyright. It certainly has changed the
>competitive horizon and undermined the opportunity for lots of innovation.
>S+B: In your new book, The Future of Ideas, the subtitle reads The Fate of the
>Commons in a Connected World, evoking Garrett Hardinís Tragedy of the Commons.
>Is whatís happening with the Internet a ìtragedyî?
>LESSIG: There is a double sense of tragedy. One that I reject, and one that I
>embrace. Tragedies occur when resources held in common get overused. If
>everybodyís cattle consume a pasture, at some point the cattle will
>pasture, so there will not be enough for later. Leaving the resource (a
>pasture) open for everyone produces this tragedy. The standard response is to
>enclose the resource to ensure it is not overused.
>But there is no tragedy with resources that economists call nonrivalrous ó
>resources that create no rivalry between users. With nonrivalrous resources,
>your using that resource doesnít deplete the resource; thereís just as much
>left over afterward as there was before. Placing those resources into a
>produces no tragedy.
>Ideas ó and expression ó are resources that are nonrivalrous. Your use of my
>poem doesnít decrease my opportunity for using the poem. And the same is true
>with the particular commons that I focused on in my book: the innovation
>The innovation commons is a commons that was constructed by the architectures
>of the Internet. By embracing an end-to-end design, the Internetís architects
>made it such that the network itself could not control who, what, or what kind
>of applications got to run on the network. The network didnít have that
>intelligence. So from a conceptual standpoint, it took the right to innovate
>and placed it in a commons that anybody could use. Thatís a kind of commons
>where there is no potential tragedy because your innovation for the Internet
>doesnít decrease my ability to innovate for the same Internet. This commons
>invites a comedy, not a tragedy ó a comedy in the sense that the more people
>use it and do things with it, the more valuable it becomes to everybody.
>Now there is a tragedy with the innovation commons. This is the second
>tragedy I described, and this sense I do embrace. This tragedy is happening
>because of steps being taken by corporations and governments to enclose this
>commons. The enclosure, which is coming from increasing control at the
>layer and increasing control from the content layer, will erode this commons.
>S+B: The Future of Ideas says that the Internet became a commons because any
>device could be connected. And the code or content layer is free, as well as
>the physical layer, the telephone lines most traffic runs on. Now, as the
>Internet moves to the wireless arena, one would assume all bets are off.
>Everyone ought to have access, but why isnít it transpiring in that way?
>LESSIG: Spectrum itself could function as a commons. If portions were
>architected so that there was a certain amount of free spectrum, then
>telephone company interests in wireless could coexist with free use. This
>create a great deal of innovation. But my concern is that there is such strong
>pressure against this, and such a misunderstanding about the dynamics of free
>spectrum, that instead there is a push toward what people call the marketplace
>That gets translated into auctioning off spectrum, which could quickly develop
>into the equivalent of the cable companiesí owning the cable, and then once
>again they can use the spectrum however they want, and if theyíre strong
>enough, they can use it to block competition. But the key here is to
>commons in the spectrum layer. In the broadband race, if you encourage a
>stronger development of wireless, this could very quickly develop into
>competition for these two quasi-monopolists.
>S+B: Does the battle then move beyond DSL and cable modem?
>LESSIG: Right, add a third competitor like wireless that doesnít depend upon
>high infrastructure costs, and all of a sudden youíve got a real race. The FCC
>could do that fairly easily, but only if it understands the value of commons
>S+B: Isnít it just due to a fortuitous set of circumstances that the Internet
>was architected the way it was, that it ran on the Unix operating system,
>was freely available to everybody?
>LESSIG: Youíre right, but it might have just been fortuitous that they chose,
>for example, to put TCP/IP protocol in the public domain. And that it was run
>on an operating system that was generally open and modifiable. But that
>change the character of the thing that this fortuity produced.
>S+B: So youíre saying that the technical choices made by the Internetís
>creators, for whatever reasons they might have had, resulted in a platform
>uniquely suited to innovation.
>LESSIG: Yes. If the Internetís creators had produced a closed proprietary
>network, this kind of development wouldnít have occurred. Part of the reason I
>wrote this book was to try to get people to focus on what it was about the
>Internet that produced the innovation and creativity that we saw. The thing
>that produced it was the extraordinary opportunity for lots of people to
>innovate there, as opposed to an architecture that gave the network the power
>to pick and choose.
>S+B: It seems that you could almost make the case that every new medium ó
>photography, FM radio, rock and roll ó starts from a kind of primitive state
>where you have lots of innovation and creativity, but ultimately the medium
>becomes commercialized and more controlled. Is there something fundamentally
>different about the Internet?
>LESSIG: You are right that we can see this pattern in a lot of contexts.
>Although in some of these contexts I think that there was a much stronger
>economic argument in favor of the concentration or the commercialization
>describe it. So I wouldnít say that in each of these cases there was a
>conspiracy and now we see the results.
>But the economic argument that justified these other concentrations does not
>justify concentration in the context of the Internet. Keeping a neutral
>platform here will induce extraordinary commercial and noncommercial
>engagement. Giving up that neutral platform will benefit some commercial
>innovation, but at the expense of a vast majority of opportunity. So whatever
>the justification for the enclosure movement in the past, I donít think it is
>applicable to the Internet.
>S+B: You devote quite a bit of space in the book to free software and the Open
>Source movement, which was initiated by Richard Stallman at MIT and
>by Linus Torvaldsís Linux. How close are the Open Source phenomenon and the
>Internet as a sustainable commons?
>LESSIG: I think they are intimately connected. Thereís a critical mass thatís
>necessary to make a large Open Source project, or a large free software
>project, function. And the critical mass is enabled by the technical
>infrastructure of the Internet. This infrastructure is neutral and open
>sorts of people to participate in, so itís just as easy for somebody in Europe
>to participate in this production process as it is for somebody in the United
>States. So the two go together.
>S+B: What about the reverse? Is the Open Source community crucial to the
>Internet, or could it just as well run on Microsoftís NT operating system, as
>much of it does, or Sunís Solaris, which is pretty ubiquitous on the Internet?
>LESSIG: The Open Source movement is critical to the Internet indirectly, not
>necessarily directly. Itís critical indirectly in that because of the Open
>Source movement, the proprietary platforms have a harder time making strategic
>barriers against new innovation. Now if these proprietary platforms were
>completely neutral, you could say it wouldnít really matter so much. But
>thereís a competitive or strategic game for people to play based on a
>S+B: It is always in the interest of the incumbent to limit uncertainty, to
>avoid disruption, and the incumbents have all the resources. It almost seems
>inevitable that they win regardless of what might be best for innovation, or
>society as a whole.
>LESSIG: Yes, incumbents have all the resources, but sometimes all the
>in the world arenít enough to stop technological disruption. This is the
>optimistsí story ó ìtheyíll never be able to stop it.î But Iím a pessimist
>about this. Sometimes they canít stop it; some regimes wonít be able to
>new technologies. But there is a lot of damage that can be done in the
>Even if they canít stop change, they can slow it down in a way that really
>set it off on a path that produces an outcome that is far less valuable than
>what we could have had.
>S+B: In The Innovatorís Dilemma, Clayton Christensen makes the case that
>disruption has been one of the fundamental causes or mechanisms through which
>our lives have improved. Is there any place in the public policy debate to
>that kind of argument?
>LESSIG: Well, in one sense, thatís what the Microsoft case was about. It was
>saying that you, Microsoft, have to leave yourself open to the risk of
>fundamental disruption. The browser might displace your operating system, but
>the law doesnít permit you to use your power to protect yourself against that
>And in a very deep and I think completely isomorphic way, democracy is about
>that. Democracy says the government in power canít entrench itself by saying,
>ìWell, OK, votes against us will only be counted at 20 percent and votes
>at 180 percent.î The rules basically say every four years or every two years,
>you are open to being kicked out. Now people complain about the extent to
>incumbents entrench themselves through various devices, but we understand that
>to be a flaw in the system, we donít understand it to be a virtue of the
>Whatís weird in the context of markets is lots of times we think it a
>the system that the incumbent entrenches itself against disruptive technology.
>I do think sometimes you can show an economic gain from this entrenchment; I
>just feel skeptical about its reach, and I think we should be working to
>minimize the range of cases where somebody could use entrenchment to block
>S+B: Both in the book and in testimony you have given before Congress, you
>a relatively soft line on Microsoft. And, indeed, you say you donít see it as
>the biggest threat to the Net. That seems to me very different from what most
>of your friends in the Open Source community might say.
>LESSIG: The Court of Appeals has now affirmed that Microsoft engaged in
>behavior in protecting its operating system against a certain kind of
>competition. But I also think it is very important not to continue to
>last war for the next 12 years. Microsoft was an important threat, and I still
>think that existing remedies are not adequate to deal with that threat.
>But what is striking me more and more is, as you look at what Microsoftís
>business model could be, you see it could be something that fundamentally
>reinforces the very best of the Internet. Its model, the ì.NETî Web services,
>does depend upon a nice end-to-end network that doesnít have in the middle
>cable companies playing games with what service is on cable and telephone
>companies determining what service is on telephones. More strongly, to the
>extent cable companies get empowered to play the kind of game that Iíve been
>tackling, ì.NETî Web services become less and less valuable. So Microsoft has
>an interest in defending the end-to-end architecture.
>In the same way, Disney has an interest in defending the end-to-end
>architecture, because Disney doesnít own any infrastructure; itís just got
>great content. So it, too, becomes a kind of defender of neutral pipes, which
>is the most important value here. Now Iím not saying Microsoft will become
>necessarily, just that we ought to understand how it could become a force of
>good and letís try to steer it to that.
>For a lot of other companies, it is not so obvious that their business
>a force of good. What is AOL? It owns content, it owns code, it owns physical
>infrastructure, and itís integrated. This vertical integration is not about
>building a platform for anybody to innovate on. Itís about building a platform
>where AOL controls what goes on. Itís a company town from top to bottom. Iím
>not against AOL, but that architecture doesnít invite the innovation that
>the Internet. So between AOL and Microsoft, I at least see how Microsoft could
>become good; Iím not sure I see how the business model of AOL could become
>S+B: Youíve argued on behalf of Napster, which the music industry has
>as merely a tool for violating copyrights. And you make a broad case against
>increasing the scope of copyright, which many of us in the content creation
>business might not view as such a bad thing.
>LESSIG: The critical thing is to distinguish between how copyright benefits
>authors and how it benefits publishers in the modern age. I have no hesitation
>in saying that to the extent copyright benefits authors and creators, itís a
>good thing. But it is being used by publishers in the modern environment to
>stifle innovation. The increased power of the Recording Industry
>America to limit digital distribution does not benefit musicians; it increases
>music publishersí power to limit new kinds of competition.
>S+B: You wrote the legal briefs for the plaintiff in Eldred vs. Ashcroft. Eric
>Eldred produced an HTML book library by putting public-domain books in Web
>form, but was stymied by Congressís extension of copyrights. In February, the
>Supreme Court agreed to hear Eldred. What was the significance of that?
>LESSIG: I hope this signals that it takes the case seriously and will take
>equally seriously the claim that the Constitution restricts Congressís ability
>to extend copyright. I believe that will affirm what the Framers intended,
>which was that copyright grants authors an exclusive right ìfor a limited
>time,î and that their work would enter into the public domain after a time.
>Originally, the simplicity of copyright made it a lawyer-free zone. To the
>extent we can eliminate lawyers from the process, weíll encourage a great deal
>of innovation that right now is stifled.
>Reprint No. 02210
>This article is from Second Quarter, 2002
>Click HERE to subscribe to strategy+business
>©2002 Booz Allen Hamilton Inc. www.boozallen.com All rights reserved.
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