Lawrence Lessig on intellectual property rights and cyberspace.
By Lee Bruno
From the December 04, 2000 issue
No one is more prescient about the collision of the Internet, government,
and business than Lawrence Lessig. During the past five years, Mr. Lessig
has taught and written about some of the most vexing legal questions
involving the U.S. Constitution and the law of cyberspace. At the heart of
these critical issues is intellectual property and privacy and how they
will be handled in cyberspace.
In order to foster and preserve the openness of the Internet, it's
imperative to make the right choices now. Mr. Lessig makes clear the danger
from efforts to regulate the Internet, which will have long-lasting effects
on its growth and development. But following a simple laissez-faire policy
is also fraught with problems. Mr. Lessig maintains the approach that the
openness of digital code can be used to restructure cyberspace. He also
believes that the citizens of cyberspace must grapple with these issues, or
else suffer the fate of being coded into a world they don't understand,
designed without their help by software developers.
Mr. Lessig was the Berkman Professor of Law at Harvard Law School and just
recently moved to California, where he is now a professor of law at
He is quick to point out the deficiencies in law, and says both business
and government are missing the importance of intellectual property and its
fundamental underpinnings for the future of e-commerce. His position on
Internet issues places him in sharp contrast to cyber libertarians who
believe the government poses the single biggest threat to the development
of the Net. He speaks with eloquence and conviction about the critical
issues that lie before us.
Red Herring recently caught up with Mr. Lessig and talked to him about the
future of intellectual property and peer-to-peer technologies.
Some have placed the arrival of P2P on the same scale as the Mosaic
browser. Do you believe this technology breaks new ground?
I don't think the concept of peer-to-peer is new. It is an end-to-end
architecture. We haven't even begun to understand or imagine the
possibilities. This is the next great thing for the Internet. What has
changed is the latent power of the PC and powerful networks being fully
realized. Napster is a first, rough cut of this model as it makes implicit
the intent of an end-to-end network. The potential cycles that were
unavailable can now be deployed for any task.
At the 9th International World Wide Web conference in Amsterdam this past
June, you described in your lecture the parallels and differences between
the Internet and the AT & T telecommunications network prior to
deregulation. What understanding can we obtain from this parallel, and what
are the implications for a P2P model?
Peer-to-peer is an instantiation of an architecture that is not giving the
network owner control over the network. To that extent, it is reflective of
the move that enables this end-to-end creativity. To the extent that
peer-to-peer is an expression of an end-to-end design, it's again expanding
the scope of creativity outside traditional networks and distributors. This
is largely what Hollywood has been. And a business model built around
peer-to-peer undermines their distribution model.
You've said that patents are a form of regulation. How do patents hurt the
Patents create incentive for innovators but also create costs for
innovators. Every step has to be monitored by the patent police. It is a
huge regulatory burden. If we were going to double the monitoring of the
Occupational Safety & Health Administration there'd be a chill on
innovation, and the costs would be huge.
What about Napster? What are the chances of the Napster case reaching the
This is a case that will pretty quickly ripen into the sort of case that
goes to the Supreme Court. It is the first case, but it is not the case
that will resolve the questions. If the court does what it did with VCR
technology, that means this is going to be an industry that has to come to
terms with this mode of distribution.
If the court doesn't get a chance to address it, that will chill the VC
money that might have been devoted to this kind of innovation. That is my
What are the implications of a Supreme Court decision in the Napster case?
If the Supreme Court writes an opinion in the style that it wrote in the
Communications Decency Act, then it will be very difficult going forward. I
think that would be the writing on the wall for the industry. It is
possible for the court to write an opinion to move it to the next level,
but it's not obvious that this will happen.
Is this new P2P technology fragile in any sense?
It is an emergent movement, so if it's crushed, it would create something
much worse than the violation of the copyright is going to give them.
As American law struggles to come to grips with these vexing intellectual
property issues, what about international laws?
It's likely that once the American law has struggled with intellectual
property, the same issues will be addressed internationally. I don't think
European regulators are up to speed yet on intellectual property issues.
European regulators have been slower to take account of the Internet. That
is a good thing, because if they did respond quickly, then they would
probably do something that does not strike the necessary balance.
What about business models involving P2P? Any thoughts on ways in which
businesses might profit from these networks?
I haven't thought through the business models, but there is a need for a
different kind of sponsorship. In my view, it is a great thing for artists
and content producers to get a larger piece of the pie. But because of the
economics of production, we've been forced to take control of these rights.
There are some people who believe that the notion of intellectual property
might disappear completely over the next 20 years. Do you find this idea
I don't think there is such a thing as intellectual property dying.
Intellectual property is going to change. The owners don't have control
over the use of it. That is the important limitation. The tradition of
intellectual property is that it doesn't grant the owner perfect control
over its use. That is the battle we are fighting.
How has the Internet changed the prospects for intellectual property?
There's never been a technology to give perfect control over content until
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