Why tech innovation is under threat

Widely known as the "special master" in Microsoft's antitrust trial, Stanford Law School professor Lawrence Lessig has been carving out another public role for himself in recent years: the Internet's legal watchdog.

With his 1999 book "Code and Other Laws of Cyberspace," Lessig warned that personal freedoms were at risk as the Internet's architecture changed from an open platform to a more closed, corporate-controlled one. In his new book, published this month by Random House and titled "The Future of Ideas: The Fate of the Commons in a Connected World," Lessig sounds the alarm about a corollary problem: the threat to technological innovation. As giant American profit-driven entities increasingly control the structure of the Internet, Lessig warns, that structure will become less and less fertile for the kind of invention that both gave rise to the network and has threatened the entrenched companies dependent on the status quo.

Following studies at the University of Pennsylvania; Trinity College, Cambridge; and Yale Law School, Lessig launched his career clerking for the renowned and controversial conservative jurists Richard Posner, on the Seventh Circuit Court of Appeals, and Antonin Scalia, on the U.S. Supreme Court. Since then he has taught at the University of Chicago Law School and Harvard Law School, and was a monthly columnist for The Industry Standard. He serves on the board of the Red Hat Center for Open Source and of the Electronic Frontier Foundation, and he recently co-founded the Center for Internet and Society, a Stanford group litigating Internet privacy, anonymity and hacker-related cases.

Lessig spoke to CNET News.com about recent flare-ups in the battle over the Internet's direction, including the Microsoft, Napster and Sklyarov cases, patent and copyright law, and the increasing power over the Internet exercised by the cable industry.

Q: What's the difference between the threats you identified in your first book and those you've named in the new one?
A: The changes I look at in this book are more fundamental than the ones in the first. These are changes in the core of the network that in effect will compromise the original principles of the network, particularly the principle of end-to-end, which says the network should be as simple as it can be so it can't discriminate among uses and applications. That's being compromised in the use of broadband on the Internet. It's at a lower level of the network, but will have more profound effects.

These are modifications to the original protocols of the network that will facilitate the network owners' desire to discriminate, changing the network from a neutral platform to one that tilts against some uses and applications.

Can you give a specific example?
As cable has taken over the network, the cable companies have begun to architect the implementation of broadband in such a way that they're in a position to control the way the network gets used, to decide what content flows swiftly or slowly.

In the new book you say the Internet revolution faces what you call a "counterrevolution of devastating power and effect." What does that counterrevolution consist of?
The basic dynamic is that the original network presents threats to existing interests, that those are the ones fomenting the counterrevolution. This includes network providers, the people who own the wireless spectrum--they're resisting the original architecture of the network because that architecture facilitates pretty significant competition against them. It's the owners of the pipes, the cable companies, acting in the way I just described, but also, given the power to discriminate that the cable companies have, the telecoms are pushing bills in Congress to be freed of the traditional regulations that require that they remain neutral.

What is Congress doing on this front?
There are a number of bills floating around Congress to do exactly this. It's hard to see where the support lies, but it's pretty strong. (FCC) Chairman (Michael) Powell, in a speech about broadband, advocated that providers be free of common-carrier-like regulations. In my view, that means they are free to engage in the type of discrimination that the original Internet made impossible.

What are some of the less obvious fronts in this war for control?
I'm also concerned about the way that intellectual property is used to protect existing ways of doing business or protect existing business models. In the context of copyright in the music industry, you have a highly concentrated industry in its present form that fears the kind of open competition that the Internet could provide if it were free to deliver and produce content. So through lawsuits the industry has resisted those ways of delivering content and companies designed to facilitate that delivery, and that has left the field empty except for methods they control or approve of. The music industry has effectively vetoed new innovation in the delivery and production of content.
Another threat is in the area of patents, where there has been an explosion of patents in the arena of software and network technologies. They're a kind of tax on the innovation process, in the sense that companies competing in a field governed by patents have to secure defensive patents and engage in significant licensing.

You seem to be identifying two threats, one to the Internet's ability to grow, the other to our personal freedoms. How are the two related?
With regard to the Internet's growth, to the extent that you create burdens in the innovative process, you make it harder to grow commercially by this tax on innovation. In the personal context, one of the great promises in the digital revolution was the promise of greater creativity among individuals to distribute and produce new content, whether music or writing or filmmaking...To the extent that the enforcement of copyright succeeds in closing down access to those resources, it will slow down people's ability to take advantage of this opportunity.

What's the most pressing threat? And how can the average person most effectively respond to it, both to protect him- or herself and to help stem the larger tide of corporate control?
The greatest threat is that before we even recognize the value of creativity and innovation that comes from a neutral platform, the neutral platform will disappear. What people can do to resist this is to resist the increasing efforts through law, like the law of copyright, to exercise control over the future of the Internet.

What people can do is they can become politically involved to insist on a more limited, balanced protection of copyright so it doesn't become a tool by which innovation gets stifled.

Be more specific. What can someone do now, today, if they're concerned about this trend?
The easiest thing is to give money to the EFF.

And your relationship to that group is...
I'm on the board of directors. Among civil liberties groups they're the only ones thinking about the relationship between architecture and policy.

What's the proper role of intellectual property law on the Internet? How is it being abused?
The conception of some in the intellectual property community is that intellectual property should give the intellectual property owner the right to perfectly control the use of intellectual property. So they should be able to decide whether you have the right to read a book once or five times, the right to loan it to a friend, the right to copy a section out of it to use in a school report. They believe they should have the right to control it.

That's the extreme position of control that our tradition and good sense should resist. We've never protected intellectual property perfectly; instead we have always protected it in a way that preserved opportunities for uses that copyright owners cannot perfectly control.

So there's something better about an imperfect system?
We have always sought a leaky system of protecting intellectual property, so that people can build around it. Take jazz music as an example: If everyone writing jazz music had to negotiate with everyone they were building upon, we would not have jazz, because the costs of that kind of negotiation would be just too great. So this is true of creativity in many contexts, that it involves the taking and building upon of someone who has done it before. That's the view of freedom that this extreme view of copyright rejects.

Who are the worst offenders in this story?
Cable companies, the copyrights of the recording industry. The same principle was at stake in the Microsoft case. Microsoft was using its power to protect itself against new innovation. That's just another example of how you can manipulate the platform.

Many think Microsoft is getting off too easy in the proposed antitrust settlement. Do you agree?
I think the consent decree is a great failure. The general form is a good one--trying to use the competitive process to police the company--but there's no effective enforcement mechanism. After four years of struggling with Microsoft to get them to understand the law, the enforcement mechanism would be the most important to solve. But there's none.

What lessons should we draw from the Sklyarov case?
That's an example of copyright law's extremes. He's produced technology that could be used consistently with fair use, and he's branded a criminal and now faces 25 years in jail. What we can learn is the extremism that the present copyright system pushes in the defense of copyrighting and its potential for intervening with legitimate use and technologies.

What about what happened with MP3 and Napster?
That's an example of how the recording industry uses the law to stop new innovation in the delivery and production of content.

Where do we go from here on the copyright front?
The courts have basically shut down innovation that the recording industry does not approve of. In my view Congress should step in and establish a baseline of neutral rights so that anyone has a right to access music to distribute in this medium.

I have supported a compulsory license for online music so that many Napsters can pay for content that consumers were taking, but they would have the right to access so they could compete with the recording industry with respect to distribution and ultimately production of new music.

What are the odds of getting that from this Congress?
Extremely low.

You've called for "strong but short" copyright protection with a five-year term that could be renewed for up to 75 years. What would this accomplish?
It would allow more stuff to fall into the public domain automatically. And if we could eliminate an expansive derivative right, it could allow much greater innovation on top of what has been produced.

What was special about the way the Internet's architecture developed? How is that special quality now endangered?
What was special was that the network architects built the Internet in such a way that recognized they didn't understand how it would be used. They built it to be as simple and flexible as possible so that it could be developed in any number of ways as users and innovators wanted it. They were humble, in an sense, about their own insight about this. That humility translated into a architecture that inspired the innovation that the Internet produced.

In a review of your new book, Salon.com writes that you are "reluctant to criticize directly the software giants and the architects of the controlled future, noting that they have obligations to stockholders." Are you throwing up your hands at the problem?
What I'm saying is that there's no reason to believe that business will do what's good for the country. Business will do what's good for business. To the extent that there's a public policy at stake, we should use policy-makers to do the right thing. We should not trust that AOL or AT&T will build the architecture to benefit the nation as a whole, because they will build it to benefit themselves. That's what they were hired to do. Public policy has to come from public-policy-makers, not from business.

You write about the "public" or "intellectual" commons. What does that mean, and is it something that can coexist with free markets?
The sense of commons that I've been talking about is the commons produced by a neutral platform, where everyone has an equal right to build and create. In that sense it's just like a public highway system, which was built so that GM cars run on it just as well as Ford cars.

You've accused programmers of dropping the ball, politically. What are they doing and what should they be doing?
They need to do a better job in showing us the values that are built into the code they're writing. The point of both my books is that the architecture had certain values build into it. The people changing them should do a better job of making us aware of how the values change with the code.

In the wake of 9/11, national identity cards have received renewed attention. Do you think it's a good idea?
At the crude level people think about this now, no. But I believe there is a way to architect identity that would increase security and increase privacy. No one, however, is thinking along these lines now.

What's the biggest misconception people have about the Internet?
That its freedoms will always be. They won't. The freedoms are a function of its architecture. Its architecture can change.