Why Larry Lessig gets an "F" in software

Lawrence Lessig first came to public attention a few years ago when U.S. District Judge Thomas Penfield Jackson, then presiding over the Microsoft antitrust case, invited him down from Harvard as a special master.

Since then, Lessig--nowadays working at Stanford University--made a name writing and expounding on the danger posed by powerful, entrenched interests in using copyright law to choke innovation and halt the sharing and distribution of copyrighted works online.

This was all of a piece with the spirit of Creative Commons, a nonprofit organization Lessig helped create with the laudable idea of creating a "property conservancy" that, among other things, would "protect works of special public value from exclusionary private ownership." Some of the works would presumably be donated, others would be bought from the creators. Nothing untoward there.

But Lessig is also going further. In his latest book, "The Future of Ideas: The Fate of the Commons in a Connected World," he draws a distinction between the intellectual property developed by, say, an Ernest Hemingway, and the intellectual property created by a code jockey.

"When the system protects Hemingway, we at least get to see how Hemingway writes. We get to learn about his style and the tricks he uses to make his work succeed. We can see this because it is the nature of creative writing that the writing is public. There is no such thing as language that conveys meaning while not simultaneously transmitting its words.

"Software is different," he continues. "Software gets compiled, and the compiled code is essentially unreadable; but in order to copyright software, the author need not reveal the source code."

Lessig would limit software copyrights to ten years. After that, the code would wind up in the public domain.

That results in an unfair social arrangement, according to Lessig, who believes that coders (or more likely, the companies they work for) get to enjoy decades of copyright protection (70-plus years) while the public gets nary little in return.

And then punctuating his prose with a professorial flourish, Lessig dismisses this as "a bastardization of the Constitution's requirement that copyright be for 'limited times.'"

Software wasn't around when Madison, Hamilton and Jay were arguing in support of a constitution in the Federalist Papers, and it's hard to know what the founding fathers would have made of all this (though my bet is they would have been Mac guys, not PC guys).

I'll leave Lessig to fight that argument out with Alan Dershowitz. But considering the billions of dollars and thousands of jobs created through software development over the last couple of decades, it's hard to argue there has not been considerable community benefit to letting software developers retain copyright control over their code. Open source has its place, but it's not the answer for everything.

How long should society give the creators of code to enjoy the fruits of their labor before lifting copyright controls?

Lessig would limit software copyrights to 10 years. After that, the code would wind up in the public domain. I can't think of a better prescription for formalizing the existing constellation of power that favors the Microsofts and Oracles over the small and independent developers.

At this juncture in the history of the software industry, more so than ever before, 10 years doesn't amount to a hill of JavaBeans--not when you're attempting to build up brand, distribution and customer loyalty in an increasingly fragmented and competitive market.

Lessig would doubtless oppose anything cementing that structural imbalance. But good intentions are not good enough and the reality of the software industry in 2002 is such that stripping away carefully developed intellectual property in pursuit of a wooly-headed Arcadian utopia will only boost the fortunes of the software superpowers already living the life of Riley.

How long should society give the creators of code to enjoy the fruits of their labor before lifting copyright controls? If we want to maintain the flow of software innovation, it better be for a fair chunk of time. Otherwise, you're going to wind up with something like Albania, circa 1975.

Got the picture?