Category Archives: lessig

the ambiguity of net neutrality

The Times comes out once again in support of network neutrality, with hopes that the soon to be Democrat-controlled Congress will make decisive progress on that front in the coming year.
Meanwhile in a recent Wired column, Larry Lessig, also strongly in favor of net neutrality but at the same time hesitant about the robust government regulation it entails, does a bit of soul-searching about the landmark antitrust suit brought against Microsoft almost ten years ago. Then too he came down on the side of the regulators, but reflecting on it now he says might have counseled differently had he known about the potential of open source (i.e. Linux) to rival the corporate goliath. He worries that a decade from now he may arrive at similar regrets when alternative network strategies like community or municipal broadband may by then have emerged as credible competition to the telecoms and telcos. Still, seeing at present no “Linus Torvalds of broadband,” he decides to stick with regulation.
Network neutrality shouldn’t be trumpeted uncritically, and it’s healthy and right for leading advocates like Lessig to air their concerns. But I think he goes too far in saying he was flat-out wrong about Microsoft in the late 90s. Even with the remarkable success of Linux, Microsoft’s hegemony across personal and office desktops seems more or less unshaken a decade after the DOJ intervened.
Allow me to add another wrinkle. What probably poses a far greater threat to Microsoft than Linux is the prospect of a web-based operating system of the kind that Google is becoming, a development that can only be hastened by the preservation of net neutrality since it lets Google continue to claim an outsized portion of last-mile bandwidth at a bargain rate, allowing them to grow and prosper all the more rapidly. What seems like an obvious good to most reasonable people might end up opening the door wider for the next Microsoft. This is not an argument against net neutrality, simply a consideration of the complexity of getting what we wish and fight for. Even if we win, there will be other fights ahead. United States vs. Google?

open source DRM?

A couple of weeks ago, Sun Microsystems released specifications and source code for DReaM, an open-source, “royalty-free digital rights management standard” designed to operate on any certified device, licensing rights to the user rather than to any particular piece of hardware. DReaM (Digital Rights Management — everywhere availble) is the centerpiece of Sun’s Open Media Commons initiative, announced late last summer as an alternative to Microsoft, Apple and other content protection systems. Yesterday, it was the subject of Eliot Van Buskirk’s column in Wired:

Sun is talking about a sea change on the scale of the switch from the barter system to paper money. Like money, this standardized DRM system would have to be acknowledged universally, and its rules would have to be easily converted to other systems (the way U.S. dollars are officially used only in America but can be easily converted into other currency). Consumers would no longer have to negotiate separate deals with each provider in order to access the same catalog (more or less). Instead, you — the person, not your device — would have the right to listen to songs, and those rights would follow you around, as long as you’re using an approved device.

The OMC promises to “promote both intellectual property protection and user privacy,” and certainly DReaM, with its focus on interoperability, does seem less draconian than today’s prevailing systems. Even Larry Lessig has endorsed it, pointing with satisfaction to a “fair use” mechanism that is built into the architecture, ensuring that certain uses like quotation, parody, or copying for the classroom are not circumvented. Van Buskirk points out, however, that the fair use protection is optional and left to the discretion of the publisher (not a promising sign). Interestingly, the debate over DReaM has caused a rift among copyright progressives. Van Buskirk points to an August statement from the Electronic Frontier Foundation criticizing DReaM for not going far enough to safeguard fair use, and for falsely donning the mantle of openness:

Using “commons” in the name is unfortunate, because it suggests an online community committed to sharing creative works. DRM systems are about restricting access and use of creative works.

True. As terms like “commons” and “open source” seep into the popular discourse, we should be increasingly on guard against their co-option. Yet I applaud Sun for trying to tackle the interoperability problem, shifting control from the manufacturers to an independent standards body. But shouldn’t mandatory fair use provisions be a baseline standard for any progressive rights scheme? DReaM certainly looks like less of a nightmare than plain old DRM but does it go far enough?

cultural environmentalism symposium at stanford

Ten years ago, the web just a screaming infant in its cradle, Duke law scholar James Boyle proposed “cultural environmentalism” as an overarching metaphor, modeled on the successes of the green movement, that might raise awareness of the need for a balanced and just intellectual property regime for the information age. A decade on, I think it’s safe to say that a movement did emerge (at least on the digital front), drawing on prior efforts like the General Public License for software and giving birth to a range of public interest groups like the Electronic Frontier Foundation and Creative Commons. More recently, new threats to cultural freedom and innovation have been identified in the lobbying by internet service providers for greater control of network infrastructure. Where do we go from here? Last month, writing in the Financial Times, Boyle looked back at the genesis of his idea:

stanford law auditorium.jpg
We’re in this room…

We were writing the ground rules of the information age, rules that had dramatic effects on speech, innovation, science and culture, and no one – except the affected industries – was paying attention.
My analogy was to the environmental movement which had quite brilliantly made visible the effects of social decisions on ecology, bringing democratic and scholarly scrutiny to a set of issues that until then had been handled by a few insiders with little oversight or evidence. We needed an environmentalism of the mind, a politics of the information age.

Might the idea of conservation — of water, air, forests and wild spaces — be applied to culture? To the public domain? To the millions of “orphan” works that are in copyright but out of print, or with no contactable creator? Might the internet itself be considered a kind of reserve (one that must be kept neutral) — a place where cultural wildlife are free to live, toil, fight and ride upon the backs of one another? What are the dangers and fallacies contained in this metaphor?
Ray and I have just set up shop at a fascinating two-day symposium — Cultural Environmentalism at 10 — hosted at Stanford Law School by Boyle and Lawrence Lessig where leading intellectual property thinkers have converged to celebrate Boyle’s contributions and to collectively assess the opportunities and potential pitfalls of his metaphor. Impressions and notes soon to follow.

lessig: read/write internet under threat

In an important speech to the Open Source Business Conference in San Francisco, Lawrence Lessig warned that decreased regulation of network infrastructure could fundamentally throw off the balance of the “read/write” internet, gearing the medium toward commercial consumption and away from creative production by everyday people. Interestingly, he cites Apple’s iTunes music store, generally praised as the shining example of enlightened digital media commerce, as an example of what a “read-only” internet might look like: a site where you load up your plate and then go off to eat alone.
Lessig is drawing an important connection between the question of regulation and the question of copyright. Initially, copyright was conceived as a way to stimulate creative expression — for the immediate benefit of the author, but for the overall benefit of society. But over the past few decades, copyright has been twisted by powerful interests to mean the protection of media industry business models, which are now treated like a sacred, inviolable trust. Lessig argues that it’s time for a values check — time to return to the original spirit of copyright:

It’s never been the policy of the U.S. government to choose business models, but to protect the authors and artists… I’m sure there is a way for [new models to emerge] that will let artists succeed. I’m not sure we should care if the record companies survive. They care, but I don’t think the government should.

Big media have always lobbied for more control over how people use culture, but until now, it’s largely been through changes to the copyright statutes. The distribution apparatus — record stores, booksellers, movie theaters etc. — was not a concern since it was secure and pretty much by definition “read-only.” But when we’re dealing with digital media, the distribution apparatus becomes a central concern, and that’s because the apparatus is the internet, which at present, no single entity controls.
Which is where the issue of regulation comes in. The cable and phone companies believe that since it’s through their physical infrastructure that the culture flows, that they should be able to control how it flows. They want the right to shape the flow of culture to best fit their ideal architecture of revenue. You can see, then, how if they had it their way, the internet would come to look much more like an on-demand broadcast service than the vibrant two-way medium we have today: simply because it’s easier to make money from read-only than from read/write — from broadcast than from public access.”
Control over culture goes hand in hand with control over bandwidth — one monopoly supporting the other. And unless more moderates like Lessig start lobbying for the public interest, I’m afraid our government will be seduced by this fanatical philosophy of control, which when aired among business-minded people, does have a certain logic: “It’s our content! Our pipes! Why should we be bled dry?” It’s time to remind the media industries that their business models are not synonymous with culture. To remind the phone and cable companies that they are nothing more than utility companies and that they should behave accordingly. And to remind the government who copyright and regulation are really meant to serve: the actual creators — and the public.

lessig in second life

Wednesday evening, I attended an interview with Larry Lessig, which took place in the virtual world of Second Life. New World Notes announced the event and is posting coverage and transcripts of the interview. As it was my first experience in SL, I will post more on the experience of attending an interview/ lecture in a virtual space. For now, I am going to comment upon two quotes that Lessig covered as it relates to our work at the institute.

Lawrence Lessig: Because as life moves online we should have the SAME FREEDOMS (at least) that we had in real life. There’s no doubt that in real life you could act out a movie or a different ending to a movie. There’s no doubt that would have been “free” of copyright in real life. But as we move online things that were before were free now are regulated.

Yesterday, Bob made the point that our memories increasingly exist outside of ourselves. At the institute, we have discussed the mediated life, and a substantial part of that mediation occurs as we continue to digitize more parts of our lives, from photo albums to diaries. Things we once created in the physical world now reside on the network, which means that it is being published. Photo albums documenting our trips to Disneyland or the Space Needle (whose facade is trademarked and protected) that one rested within the home, are uploaded to flickr, potentially accessible to anyone browsing the Internet, a regulated space. This regulation has enormous influence on the creative outlets of everyone, not just professionals. Without trying to sound overly naive, my concern is not just that speech and discourse of all people are being compromised. As companies become more litigious towards copyright infringement (especially when their arguments are weak), the safe guards of the courts and legislation are not protecting its constituents.

Lawrence Lessig: Copyright is about creating incentives. Incentives are prospective. No matter what even the US Congress does, it will not give Elvis any more incentive to create in 1954. So whatever the length of copyright should be prospectively, we know it can make no sense of incentives to extend the term for work that is already created.

The increasing accessibility of digital technology allows people to become creators and distributors of content. Lessig notes that with each year, the increasing evidence from cases such as the Google Book Search controversy show the inadequacy of current copyright legislation. Further, he insightfully suggests to learn from the creations that young people produce such as anime music videos. Their completely different approach to intellectual property informs the cultural shift that is running counter to the legal status quo. Lessig suggest that these creative works have the potential to inform policy makers that these attitudes are moving toward the original intentions of copyright law. Then, policy makers hopefully may begin to question why these works are currently considered illegal.
The courts’ failure to clearly define an interpretation of fair use puts at risk the discourse that a functioning democracy requires. The stringent attitudes towards using copyrighted material goes against the spirit of the original intentions of the law. Although, it may not be a role of the government and the courts to actively encourage creativity. It is sad that bipartisan government actions and courts rulings actively discourage innovation and creativity.

more grist for the “pipes” debate

A couple of interesting items:
Larry Lessig wrote an excellent post last week debunking certain myths circulating the “to regulate or not to regulate” debate in Washington, namely that introducing “net neutrality” provisions in the new Telecom bill would impose unprecedented “common carriage” regulation on network infrastructure. Of course, the infrastructure was regulated before — when the net was accessed primarily through phone lines. Lessig asks: if an unregulated market is so good for the consumer, then why is broadband service in this country so slow and so expensive?
Also worth noting is a rough sketch from internet entrepreneur Mark Cuban of the idea of “tiered” network service. This would entail prioritizing certain uses of bandwidth. For example, your grandma’s web-delivered medical diagnostics would be prioritized over the teenager downloading music videos next door (if, that is, someone shells out for the priority service). This envisions for the consumer end what cable and telephone execs have dreamed of on the client end — i.e. charging certain web services more for faster page loads and speedier content delivery. Seems to me that either scenario would make the U.S. internet more like the U.S. healthcare system: abysmal except for those with cash.

Lawrence Lessig on “writing”

Closing the USC conference “Scholarship in the Digital Age,” Lessig spoke on “free culture” and the current legal/cultural crisis that in the next few years will define the constraints on creative production for decades to come. Due to obsessive fixation by a handful of powerful media industries on the issue of piracy, the massive potential of networked digital culture that has briefly flowered in the past decade could be destroyed by draconian laws and code controls embedded in new technologies. In Lessig’s words: “never in our past have fewer exercised more legal control.”
Lessig elegantly picked up one of the conference’s many threads, multimedia literacy, referring to the bundle of new forms of cultural and scholarly production – remixing, reusing, networking peer-to-peer, working across multiple media – as simply “writing.” This is an important step to take in thinking about these new modes of production, and is actually a matter of considerable urgency, considering the legal changes currently underway. The ultimate question to ask is (and this is how Lessig concluded his talk): are we producing a legal culture in which writing is not allowed?