Lawyer Lessig raps new copyright laws

Copyright litigation a problem for open-source? Lawrence Lessig, professor, Stanford Law School

Copyright and patent law, ostensibly designed to protect innovation, now have become tools large companies can use to maintain their dominance and control, Lessig said in his keynote address at the LinuxWorld Conference and Expo. And worse, those who stand to lose are letting this concentration of power take place.

"The old will defeat the new unless you do something to prevent it," Lessig cautioned an audience full of programmers and advocates of open-source software, often called "free software" because of the freedoms it allows to share, change and modify programs. "Your life will be increasingly regulated by those who say what's permitted...The consequence of this will be to re-centralize the process of innovation."

Microsoft, the world's largest software company and a foe of the open-source world, isn't so critical of existing intellectual property law. "You want to protect the creation of your ideas," Doug Miller, director of competitive strategy for Microsoft's Windows division, said in a Tuesday interview. "We value intellectual property as the basis of our business."

But Lessig said no one ever studied the issue of whether patents on software and business methods was a good idea--not even right-wing politicians who often step in to counteract movements to expand the government's regulatory domain.

The Digital Millennium Copyright Act (DMCA) has joined patent and copyright law as a tool to hobble the lively development environment that was behind the success of the Internet and Silicon Valley, Lessig said. The DMCA has been invoked to stifle Princeton professor Edward Felten's discussion of weaknesses in the copy-protection scheme of the Secure Digital Music Initiative (SDMI) and the prosecution of Russian programmer Dmitry Sklyarov for his work in breaking the encryption of Adobe's e-book format.

The DMCA is being used "to scare you away from innovating without permission" of entrenched companies, Lessig said. But the precedent is foolish; a more reasonable approach would be to prosecute those who misuse technology rather than those who create it, he said.

"Employees at Smith & Wesson don't worry if guns kill police officers," Lessig said. "Some uses are illegal and some are not. But if you wrote code that could be used for good or bad, you're arrested and sent to jail...There's something screwed up about that."

Those who can afford to hire legions of lawyers are in a better position to maintain their power, he said. "Certain companies are in a better position to innovate and develop than others," Lessig said. "Large companies with large collections of my students are better off than smaller companies that can't afford a Stanford grad."

To address the situation, Lessig called for a middle ground that balances copyright and intellectual property interests with freedom. In particular, he called for "strong but short" copyright protection, perhaps a five-year term that could be renewed for up to 75 years.

Lessig accused programmers of two counterproductive attitudes that will lead to the collapse of the current climate of innovation. Under the first, programmers argue that they're just writing code and that they'll leave politics to the politicians. Under the second, programmers argue that "what goes on in Washington is a pathetic waste of life," and that "we should build a world of freedom that they can't penetrate."

Those attitudes are dangerous. "These two rhetorics castrate this movement and stop it from flourishing," he said. "You need to remind our culture of what you built and what its source is. You need to defend it."

Lessig recommended contributing money to the Electronic Frontier Foundation (EFF), of which he is a board member. Speaking directly to politicians generally is unproductive, he said, because they're rarely amenable to debate.