January 2003

The Future of Ideas: The Fate of the Commons in a Connected World

by Lawrence Lessig; 352 pp. (268 pp. text, 84 pp. notes and index); hardcover, $30. Random House, New York, 2001

Reviewed by Robert C. Cumbow

The message of Lawrence Lessig's The Future of Ideas is important and urgent: We should not hasten to apply existing regimens of protection to new technologies, but should re-examine the policies such protections are meant to serve, then shape our application of law to reinforce those policies.

Lessig, like many, sees in today's techno-culture a disturbing trend of increasing protection, and thus control, over code, media and content that arguably ought to be more broadly available. We all benefit, he argues, if innovations at every level are free to be tinkered with by others, creating a community (or "commons") of innovation. By contrast, if proprietary protection regimes are exerted to the increasingly extreme degrees we are seeing in today's market, innovation will be delayed if not altogether stifled, and we will be the poorer for it.

He does not maintain that developers of new media and content should not profit from their work, or that works should be freely copied without permission or payment simply because it is easy to do so. What he does argue is that we need to examine carefully what policies are served, in each instance, by exerting greater or lesser controls over such works. New digital technologies invite and enable extremes of both abuse of the property rights of others and the exercise of overbearing control by those same rights holders. How are we to find moderation, and foster a climate of innovation that will benefit all of us in common?

At its best, The Future of Ideas is an important book, with some strong warnings about the movement toward over-protectiveness in our increasingly digital culture, and the price we are already paying for it. At its worst, the book suffers from a one-sided and often sloppy analysis of issues that are key to the credibility of Lessig's arguments.

His use of the term "ideas" in the book's title is unfortunate, since Lessig's argument has mostly to do with what he perceives as the over-control of alleged proprietary rights, not of ideas, which are always in the public domain, always a part of the "commons," and available to all.

Lessig's style is articulate but dispassionate, lacking in enthusiasm. He hamstrings his message — and sometimes his clarity — with a too-academic writing style and an annoying overreliance on metaphor and jargon. As noted above, he uses the term "idea" inconsistently, sometimes applying it correctly to the unprotected public domain of concepts, other times applying it to the kinds of specific expression or embodiment that may be entitled to copyright or patent protection.

Lessig's language can be irritatingly precious. He too frequently uses "map" and "architect" as verbs, and speaks of various media and software as "platforms." But more alarmingly, his language can be sloppy. He insists upon referring to the Internet as if it were a kind of "space" (he overuses the embarrassingly dated term "cyberspace" as if it actually had meaning) and to the Web as if it consisted of "locations" to be "built" and "visited." He refers to the Internet as "there" and the rest of reality as "here" (178). When he says: "The digital world is closer to the world of ideas than to the world of things" (116), he seems to expect us to believe that digital technology has somehow created a "world" quite literally different from ordinary reality — an "other place" where different rules should apply.

Spatial metaphors are, of course, common in discussing Internet activity; but while they are handy in laymen's parlance or in technology journalism, they have no place in a serious analysis of the intellectual property implications of, for example, application software development or peer-to-peer file sharing. The Internet is not some substantively different "space." It is merely a medium that provides — faster, more accurately, globally, and with searchability — the same kinds of information exchanges formerly done by mail, telephone, publishing, sound recording, broadcasting or reference libraries. It's difficult to accept challenges to contemporary applications of copyright law when they come from someone who apparently believes the fiction that using the Web is "visiting sites," rather than the reality that it consists of copying — sometimes with permission, sometimes not — files stored on other computers.

One of Lessig's worst excesses is an extended passage in which he analogizes a Web site to a dorm room (181-2) with posters and other memorabilia (all unauthorized) taped to the walls. His argument that this harms no one cheerfully ignores the fact that dorm-room walls are not easily copied by thousands of other people. Ignoring copying as the fundamental feature of Internet activity makes it easy to view copyright as a mere nuisance foisted off by overreaching commercial interests.

Copyright, a subject essential to Lessig's purpose, is treated with an odd mixture of careful erudition and careless inattention. On the good side, he provides an excellent brief tour through the evolution of copyright law in the United States, the policies it is supposed to serve, and how it has been shaped and reshaped by technological developments (from piano rolls to cable TV). On the down side, in discussing the fundamental basis for copyright protection, he uses the terms "originality" and "creativity" interchangeably, as if they were the same thing. He can perhaps be forgiven for this in light of the fact that many judicial opinions have done the same thing. But the former, not the latter, is an essential condition of copyright protection. More importantly, and less forgivably, he confuses the constitutional limitation on the duration of copyright ("fixed times") with state and common-law provisions for fair use. He mischaracterizes 9th Circuit Judge Alex Kozinski's dissent in White v. Samsung as a copyright argument.

His proposal for requiring copyright registration in five-year renewable terms (251) would be very tempting if the United States existed in a commercial vacuum. But the longer terms of copyright and the automatic conferral of copyright protection upon fixation of the work are measures that the United States took to harmonize its copyright practices with those of much of the rest of the world — a crucial measure for a nation that is the world's largest net exporter of entertainment and information technology. Lessig may not approve of this kind of globalism or our country's economic and regulatory response to it, but it is irresponsible of him not even to discuss it when it is so essential a part of the context of our contemporary copyright regimen. The term "Berne Convention" does not appear even once in his book.

For a lawyer who clerked for both Judge Richard Posner and Justice Antonin Scalia, Lessig takes a surprisingly disingenuous view of the market. He says: "[R]ecord companies choose what gets floated in the market; radio stations (in effect) get paid to play what record companies choose.… What gets played on TV is the decision of network owners; what gets broadcast on cable is the choice of cable companies" (111). While there is a kernel of truth to this, Lessig uses it to perpetuate a tired conspiracy theory about media companies, as if the wishes, tastes, and preferences of actual listeners and viewers were no part of the equation. Record companies, radio stations, TV networks and cable companies provide, as they must, only those products and programming that real people are willing to pay for (or to sit through advertising in order to enjoy).

But real people are of no interest to Lessig. He is happier striking blows at imaginary bogeymen: "When the only innovation that will be allowed is what Hollywood permits, we will not see innovation" (217). If he thinks Hollywood has not been a leader in innovation, he doesn't know much about either the art or the technology of movies.

Elsewhere he argues that: "If by resisting the model of perfect control we gain something important, then we should do so" (116). Most market-conscious policy-makers would be more likely to say "we should do so" only if we gain more than we lose, but this sort of analysis doesn't fit Lessig's one-sided view of what constitutes good market policy.

He praises two particular Internet models: the peer-to-peer file-sharing community technology of Napster, and the personalized marketing and searchable sales base of Amazon.com. It is troubling that he does not even acknowledge, much less discuss, the obvious difference between the two. Under the Napster model, after a copy is sold once, it can be redistributed free to the rest of the world, making the transactional cost of that first copy astronomical, with devastating economic consequences for the very creative innovation Lessig is at pains to extol. By contrast, under the Amazon.com model, books, CDs, DVDs, and other embodiments of creative works are still sold, one to a customer, continuing to provide incentive to the creators of what we used to call art, literature, music and film, and what Lessig and others like him now call "content."

Even when you are willing, perhaps eager, to let Lessig persuade you, he cuts you off every step of the way, makes it hard for you to believe in him, insists on preaching to his own ever-narrowing and preselected choir. This is most obvious in the following passage: "Stockholders demand that management maximize its income; we shouldn't expect management to do anything different. But even if this is 'only business' to them, that does not mean it should be 'just business' for us" (146).

It's unclear whether "stockholders" or "management" or both are the "them" he refers to. It's even less clear who are the "us" — especially in light of the fact that the vast majority of Americans who have pension plans, IRAs, 401(k)s and the like are the stockholders whose future security rests on management's ability to "maximize its income." Lessig insists on this "us" and "them" mentality without examining it very carefully. Lessig's often excellent ideas about the respective places of old and new technologies and business models are harmed by a rhetoric that betrays this fundamental bias — a knee-jerk assumption that anything old is necessarily counter-innovative and therefore unequivocally bad (139, 141). He never considers whether the problem might be that "we" don't value innovation enough, rather than that "they" prevent it from flourishing.

These many objections, concerns and quibbles of mine are not meant to suggest that Lessig's arguments fail, or that his book is unworthy of attention. He has much of value to offer. He is at his best analyzing and arguing the complex issue of allocation of spectrum and bandwidth, and he proposes what appears to be a workable model for a new approach to that issue. Indeed, near the end of his book he puts his money where his mouth is and proposes specific regimes for protecting varieties of code, media and content to provide creators with incentive while nurturing the innovation that we are currently losing to those who would exert absolute control.

In this context, he persuasively argues that software should not be patentable, and possibly not copyrightable either (210). In so doing, he presents the exciting and relevant insight that copyright and patent are, in fact, not "property rights" at all, but forms of regulation (212, 216). He recommends compulsory registration, renewal, and limitations on copyright; and compulsory licensing and micropayment systems for online music distribution.

Lessig seems to recognize that his proposals are probably too radical — and certainly too contrary to current market-dominating interests — to be adopted. But this only reinforces his conviction that there is an urgent need to re-examine law and policy in light of the cultural and communal benefits that the technology revolution can provide.