January 28, 2002
In the spring of 1993, when the Chicago Bulls were charging toward their third straight NBA championship, a television announcer mentioned that Los Angeles/New York/Miami head coach Pat Riley was attempting to copyright the phrase “three-peat.” If he succeeded, the announcer reported matter-of-factly, then every time an employee said it on the air, the network would have to pay Riley a royalty. This was my introduction to the brave new world of intellectual property law, in which every cultural “product” – every image, every insight, every flicker of wit – would become private rather than common property.
In Code and Other Laws of Cyberspace (1999), Lawrence Lessig illustrated this looming iron cage of commercial rationality with reference to the mother of all cultural transactions: buying a book. Today, he pointed out, once you have bought a book you are free to use it pretty much as you please. You can read it once or several times; lend or give it away; photocopy or scan it; write a review of it; sell it, read it aloud to your children, use it as decoration, or throw it across the room. Some of these uses (e.g., reselling it) are guaranteed by statute, but most are simply too difficult to regulate. The “transaction costs” of enforcing any restrictions on them would be prohibitive.
But suppose a new technology drastically reduced these transaction costs. This new technology would allow a purchase agreement to specify “whether you could read the book once or one hundred times; whether you could cut and paste from it or simply read it without copying; whether you could send it as an attached document to a friend or simply keep it on your machine; whether you could delete it or not; whether you could use it in another work, for another purpose, or not; whether you could simply have it on your shelf or have it and use it as well.” [Code, p. 128] These restrictions would be enforceable thanks to features of the book’s new format that could at virtually no cost monitor, and then either charge for or block, every imaginable use. Similar features would protect CDs, videos, Websites, databases, and anything else that is encoded or transmitted digitally. (As you have probably guessed, “digital” is the name of the new technology.)
Why is this disturbing? One could answer that question from a variety of standpoints. As a matter of justice, one may consider the present, freewheeling World Wide Web analogous to the public library and broadcasting systems, which at least in principle foster social equality by making cultural resources available on equal terms to the rich and non-rich. Or one may borrow Cass Sunstein’s perspective in Republic.com and worry that ever more particularized consumption decisions will increase cultural fragmentation. One may also feel – unless one is satisfied with the strength of the social fabric, or unless one knows a way to increase the number of hours in a day – that inducing Americans to spend still more time in front of flickering screens calibrating our consumption bundles ever more precisely is not worth distracting us still further from being adequate parents, spouses, neighbors, and citizens, as well as readers, sandlot athletes, hobbyists, and tinkerers. One may even feel slightly uneasy on the score of privacy, since a technology that will meter our every use of every copyrighted cultural product will reveal an awful lot about us to whoever can access it.
None of these is Lessig’s chief concern. Whatever other harm the new law of intellectual property will do everyone who is not a shareholder of large media and software companies, it will also, he warns, kill off the remarkable creativity associated with the pre-commercial Internet. “Explosion,” “revolution,” “transformation,” etc., etc.
-- we are all good and tired of the hype. Nonetheless, it has been quite a ride. New ways of connecting to the Net, communicating across the Net, and perhaps most important, distributing art, ideas, and information across the Net were, in its heroic early phase, devised at an amazing rate.
By and large, this was not done for profit. The GNU/Linux operating system, the Apache server, the PERL programming language, the BIND (Berkeley Internet Name Domain) system, the “sendmail” program, and the protocols of the World Wide Web – “these projects,” Lessig writes, “together constitute the soul of the Internet.” All of them are “open code” projects. That is, the code in which they are written is unowned or is governed by a General Public License, which allows anyone to modify the code, provided he or she makes those modifications available free to everyone else. The code that enables the Internet is thus common property. It is, to use a traditional term that Lessig adapts to cyberspace with extraordinary rigor and originality, a “commons.”
A commons is a resource that is available to everyone (or in some cases, everyone in the relevant community) without permission. The term will be familiar to many readers from Garrett Hardin’s well-known argument about the “tragedy of the commons.” To take Hardin’s example: if a pasture is held in common, the benefits of adding to one’s herd will accrue to oneself, while the costs will be shared. The result is overgrazing and a ruined pasture. The solution is exclusive property rights.
This little parable has played a large part in forming contemporary intuitions about political economy. The belief that private control almost invariable produces the most efficient use of scarce resources is part of the common sense of market societies and is regularly invoked in order to oppose state regulation or public ownership. But as Lessig and other dissenting law professors (as well as media studies professor Siva Vaidhyanathan in Copyrights and Copywrongs) point out, this maxim does not apply straightforwardly to intellectual resources.
Pasture is what economists call a “rivalrous” resource. One person’s (or cow’s) consumption leaves less for others. English and American literature is a nonrivalrous resource. One person's consumption leaves no less for others. Rivalrous resources can be depleted; nonrivalrous resources cannot. It follows that, from the point of view of efficiency, different kinds of property rights should govern the two kinds of resources. In Lessig’s formulation: “If the resource if rivalrous, then a system of control is needed to assure that the resource is not depleted – which means the system must assure that the resource is both produced and not overused. If the resource is nonrivalrous, then a system of control is needed simply to assure that the resource is created. … Once it is created, there is no danger that the resource will be depleted. By definition, a nonrivalrous resource cannot be used up.” [The Future of Ideas, 95]
With a nonrivalrous resource, one can have a commons without the tragedy. In Code and The Future of Ideas, Lessig shows at great length that the pre-commercial Internet was the site of much rapid and fruitful innovation precisely because it was a commons. And he shows at even greater length that the evolution of intellectual property law, driven by corporate leviathans and their lawyer-gnomes and articulated by free-market ideologues on the judicial bench, is drastically changing the open character of the Internet, enclosing the commons.
The Internet originated as a network connecting computers engaged in military research. A couple of decades later, researchers at a European physics laboratory invented hypertext, the basis of the World Wide Web. Both the Net and the Web employed “end-to-end” architecture. Between the edges, or ends, of the network (i.e., individual users) was a simple, neutral data transport system that would run whatever new applications were programmed in at the ends. This meant that anyone could invent and distribute new applications or modify existing ones. And a great many people did.
This “architecture of freedom” guaranteed progress but not profits. So, as the Internet gradually migrates onto a new physical structure – broadband – large, vertically integrated companies like AOL-Time Warner are moving to substitute an architecture of control, “layering onto the original code layer of the Internet new technologies that facilitate greater discrimination, and hence control, over the content and applications that can run on the Net.” [p. ] Only Federal regulation can preserve the remarkable “innovation environment” of the early Internet. But it won’t happen.
Lessig tells similar stories – all of them detailed, illuminating, and depressing – about the cable TV, music, film, publishing, and software industries. In each case, new modes of creation and distribution enabled by the Internet threaten the market share of big players. The behemoths respond by “locking up” their products with encryption software, requiring users to sign away even traditionally protected rights of “fair use,” using their ownership of parts of supply and distribution networks to marginalize potential competitors, or simply threatening newcomers with ruinously expensive lawsuits. The courts (by now most federal judges are Reagan/Bush appointees), forgetting to balance private claims against the public interest, give the behemoths what they want. Legislators, intensively lobbied and campaign-funded, also give the behemoths what they want.
This shrinking of the public domain is not at all what the Founders had in mind. Constitutionally speaking, intellectual property is not like other property. The copyright and patent clause in section 8 reads, in full: “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 Right to their respective writings and Discoveries.” It is clear, as Lessig and Vaidhyanathan show, that the Founders did not intend authorship to confer unlimited ownership rights. Not only did they say so (viz, “for limited Times,” which was understood by Congress and the courts until a few decades ago to mean “for limited times”), but they said why. Unlimited exclusive control would stifle progress. The purpose of copyright is to promote innovation; the proper goal of copyright law is to strike a balance between rewarding achievement and facilitating more achievement.
Besides, being sensible and cultivated persons and not Chicago-school economists, the Founders recognized that “Science and useful Arts” are to some extent a gift economy. Gratitude, the pleasure of discovery, the impulse to self-expression, and devotion to a common enterprise motivate creators quite as much as lucre. Of course everyone needs to make a living, but the real point is to keep the tune flowing, the conversation humming, the gift in motion. Poets, jazz musicians, filmmakers, physicists, and coders know this. It’s not their fault (and it’s not for their benefit) that the balance has been lost – that, as Lessig laments, “the ability to propertize culture in America is [now] essentially unlimited … even though the plain text of the Constitution speaks volumes against such expansive control.” [p. 198]
Said Vaidhyanathan’s Copyrights and Copywrongs covers much of the same ground as The Future of Ideas, with more attention to history and sociology, less to technology or legal and political theory. Three chapters on the history of copyright in literature, film, and music (this last with fascinating material on blues and rap) are framed by two analytical chapters, one surveying the common-law roots and constitutional meanings of copyright, the other assessing the likely cultural consequences of the revolution in intellectual property law. Smoothly written and equable in tone, it makes a valuable supplement to Lessig’s brilliant but slightly hectic exposition.
“A republic, if you can keep it,” Benjamin Franklin is said to have answered someone in the crowd outside Independence Hall who asked what the deliberations inside had produced. We've done an indifferent job, as Christopher Lasch, Walter Karp, Robert Wiebe, and others have reminded us. An important feature of that republic was a culture of innovation, made possible by laws that found a reasonable balance between commerce and creativity. This feature, like the culture of deliberation that briefly flourished in the early Republic, is being eroded by the pressures of competition and concentration. Lessig himself, as skeptical as Franklin, doubts that these pressures will be successfully resisted in the long run. But at least, thanks to Code and The Future of Ideas, Copyrights and Copywrongs, Sunstein’s Republic.com, and the writings of David Shenk, Sven Birkerts, and a few others, we need not be herded altogether passively into the global cyber-playpen.