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Lessig Examines Law And Freedom Online

By Joel Rosenberg


Technologists are to blame for passively allowing freedom on the Internet to fade, Stanford Law Professor Lawrence Lessig told a crowd of technologists in 34-101 yesterday.

And now the only way to keep that freedom from disappearing entirely, he explained, is for technologists to speak up and teach the lawyers (and everyone else) why the Internet was created the way it was.

“Teach us, in terms you know, of the justice, or freedom, that was imbedded in the code you built,” Lessig said, “and show us how the changes that code is now undergoing will quickly erase that same justice or freedom.”

Lessig explained how the Internet architects humbly avoided favoring one vision of the network over another, and instead kept the network as simple and open as possible for others to create through it. This “innovation commons,” as Lessig called it, was unprecedented in communications technology, and excited innovators that would never have considered innovating in the phone network, for example.

But Lessig then described how the Internet is now being made “safe for existing and powerful interests.” As the Internet upgrades from narrowband to broadband, cable companies are replacing telephone companies as the provider of the wires for the “physical layer.”

For historical reasons, the law allows cable companies to restrict what travels over their wires, but prohibits such behavior by phone companies. In the “content layer,” Congress has already established copyright controls beyond what historically has been considered reasonable, and lawyers are busy pushing enforcement.

With both of these layers pushing in towards the “code layer,” the neutral protocols which get the content over the wires, the goal of the powerful interests is to remove neutrality and quash potential innovation by future competitors, Lessig said.

“As we [lawyers] do this, there is practically no effective resistance from you [technologists] in this process,” Lessig said. “I wonder whether you even see the extraordinary thing you’ve built.”

Lessig gave some historical perspective for what he sees happening now. He cited the U.S. Constitutional mandate for copyright and patent law: “The Congress shall have power ... to promote the progress of science and useful arts ... by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries.” Initially a copyright was limited to 14 years, was not automatically granted, and did not protect foreign materials until 1891. “We were born a pirate nation,” he said.

As copyright law ballooned into its current state of covering “just about anything anyone does with a computer” for the life of the author plus 70 years, the goal of providing “sufficient incentive” for people to create was lost to the idea of “perfect control” over all creative works and their derivatives. Gone is discussion of whether these laws “promote the progress,” and instead, Lessig said, it is inertia that drives the charge for perfect control into the code layer.

What would help protect the code, Lessig said, is “an account that shows why the innovation and creativity that we have seen comes from this [code] that built neutrality, end to end, in its core.” It is this story of the potential of the Internet, as told by its creators, that Lessig believes is desperately needed.

“This is the time when you must teach the world just what was produced here,” Lessig said.