Friday, April 07, 2006

Interview with Lawrence Lessig

Today I am publishing an interview with Lawrence Lessig, professor of Law at Stanford Law School, founder of Stanford's Center for Internet and Society, co-founder of Creative Commons, board member of the Electronic Frontier Foundation, and de facto leader of the Free Culture Movement.

Lessig has authored a number of seminal books, including Code and Other Laws of Cyberspace, The Future of Ideas: The Fate of the Commons in a Connected World, and Free Culture.

Amongst other things Lessig was (briefly) Special Master in the Microsoft antitrust trial (United States v Microsoft), and lead counsel for the plaintiff in Eldred v Ashcroft, a case heard before the Supreme Court of the United States that challenged the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act (CTEA).

This is number five of
The Basement Interviews, the introduction of which I am publishing on my blog. The full article (including introduction) is available as a downloadable PDF file (see below for details). The interview is being published under a Creative Commons licence.

Free Culture

Lawrence Lessig, professor of law at Stanford Law School, and leader of the Free Culture Movement, speaks to Richard Poynder

Lawrence Lessig was born in South Dakota in 1961. Two years later his family moved to Williamsport, Pennsylvania, where his father, Jack Lessig, started a steel-fabricating business that was ultimately to employ around 150 people.

Lessig, his father explained to the Los Angles Times in 2002, was a very bright and able child. He was also decisive, and never seemed to fail in anything. Moreover, whatever he got into — be it starting a newspaper in the fourth grade or running a Jerry Lewis-style telethon — he became the leader. He was, added his father, "always about four or five steps ahead of everyone."

Fascinated by the question of "how things ought to be", Lessig was soon drawn to politics, becoming president of the Pennsylvania Teenage Republicans, and running the campaign for a would-be state senator. He was also the youngest member of Pennsylvania's delegation at the Republican Convention that nominated Ronald Reagan in 1980. "I grew up", he explained to Steven Levy in a 2002 Wired feature "a right-wing lunatic Republican."

Having enrolled to study economics and management at the University of Pennsylvania, Lessig rapidly concluded that business studies were really rather dull. He did, however, enjoy the history of economics. This led to an interest in philosophy, and after graduating from Penn in 1983 he decamped to Cambridge, England, to take an MA in philosophy. During the 1980s he also travelled extensively in Eastern Europe.

Lessig's sojourn abroad was to lead to his political transformation. What he calls the "thin conception of libertarianism" with which he left America proved inadequate when placed under the microscope of philosophical enquiry in Cambridge. It fared no better when his views on his home country, and its history, were juxtaposed with the very different "characterisations" he discovered in Eastern Europe. He eventually had to conclude that these other characterisations "were closer to the truth than my own understanding." As a result, he says, a "channel of scepticism" opened up in his head.

On his return to the US, Lessig toyed with the idea of becoming a philosophy professor. Concluding, however, that it was "too removed from anything real" he turned to the law, studying first at Harvard and then at Yale. The law appealed to him, he explains, because it seemed to offer a remedy, and a defence, against power rights — not least the power rights he saw dominating American politics. Indeed, by now he had come to feel a "kind of disgust" with politics. For this reason, no doubt, he chose to specialise in constitutional law.

Between 1989 and 1991 Lessig served as a law clerk, first to Judge Richard Posner of the US Court of Appeals for the Seventh Circuit, and then to Justice Antonin Scalia of the US Supreme Court. Since both justices are conservatives the newly-sceptical Lessig found himself frequently at variance with them on points of law.

Nevertheless, he says, he gained a "deep respect" for Posner — a respect that the justice clearly reciprocates. Commenting to the Los Angeles Times in 2002, Posner described Lessig as "like Ralph Nader, but brighter."

Lessig's academic career began in 1991, when he was appointed assistant professor of law in the Chicago Law School. It was not until 1993, however, that his attention was drawn to cyberspace. This came after he experienced an epiphany while reading an article in The Village Voice about a virtual rape. Coming across it shortly after reading Catharine MacKinnon's book Only Words, Lessig was struck that the author, Julian Dibbell, had been able to publish something in The Village Voice that — had it been written by MacKinnon — would have been rejected by the newspaper as contrary to First Amendment values.

Lessig concluded that cyberspace provided an ideal environment for exploring issues in a politically neutral way. As he puts it, "It was a moment to think: 'Wow, I could talk about the issues without people knowing the politics, and therefore get them to think about them originally.'"

In 1995, therefore, Lessig began teaching one of the first courses on the "Laws of cyberspace", and in 1997 he moved to the Berkman Center for Internet and Society at Harvard Law School.

Having gained a reputation as a guru in the many legal conundrums posed by a world increasingly dominated by networks and computers, in 1997 Lessig was appointed "Special Master" in the Microsoft antitrust trial. Microsoft had been charged with monopoly behaviour after merging its web browser into the Windows operating system.

Lessig's task was to conduct hearings, take additional evidence, and issue a recommendation to the court — a job that he threw himself into with huge energy and enthusiasm.

Microsoft, however, was less enthusiastic, and within two months had persuaded a federal appeals court to have Lessig removed from the case. This was a great disappointment for Lessig: speaking to Levy four years later he said sadly: "Getting the appointment was a charmed thing. But I missed the chance to write the report."

The experience, however, contributed greatly to Lessig's thinking about the implications of living in a computer-mediated world. In particular, he had become fascinated by the way that software code shapes our experience in cyberspace. His concern was, however, that in doing so it was capable of restricting our freedoms. He was also convinced that the original Internet architects were too naïve to appreciate the threat — a naivety summed up by John Gilmore's much-quoted saying: "The Net treats censorship as damage and routes around it."

For Lessig there is no such thing as "the Net". Rather there is just a "a bunch of people who write code to define the Net." Consequently, the code could at any time be re-written to remove the freedoms that had been designed into it. In 1999, therefore, Lessig published Code and Other Laws of Cyberspace. His aim was to warn people that as the Internet developed so its freedoms would come under threat, both from commercial interests and from governments intent on controlling their citizens.

In 2001 he expanded on his theme in his second book, The Future of Ideas. Examining the various layers of the Internet's architecture Lessig set out to demonstrate how each one was in danger of being re-engineered to meet the proprietary interests of commerce, or the desire of governments to monitor and deter illicit behaviour — at the cost of freedoms like the right to anonymity, freedom of speech, and the freedom to innovate. As he put it: "How a system is designed will affect the freedoms and control the system enables."

Above all, he argued, it was the Internet's end-to-end (e2e) principle — in which a dumb network merely passes traffic between intelligent computers connected to it — that is responsible for these freedoms. The threat to e2e was that the network could be appropriated by commercial organisations (e.g. Hollywood studios, record labels, and cable operators) who would then cordon off chunks of the born-open data network in order to bolster their proprietary interests.

As his thinking developed Lessig's focus began to shift from the network itself, to the content that flowed through it. His concern was that, rather than exploiting the new opportunities of the online world, large media companies were seeking to restrict access to their content, in a desire to preserve their increasingly outdated business models.

How were they doing this? First, they were starting to lock content up with digital rights management (DRM) technology. While this could be justified on the grounds that it allows copyright holders to protect their legitimate interests, Lessig feared that, if only because of the nature of DRM, this would be done at the expense of consumers — not least the erosion of their traditional "fair use" rights.

Second, they were successfully lobbying governments to introduce new legislation that not only sanctioned the use of DRM, but outlawed its circumvention, even when this was done in order to exercise fair use rights, or to engage in free speech. In 1998, for instance, the Digital Millennium Copyright Act (DMCA) had made the act of circumventing DRM a criminal offence.

Lobbying was also leading to substantial changes to intellectual property laws. Copyright, for instance, had reached the point where it now regulated a far greater range of activities and, due to continuing extensions to the term of copyright, looked set to become an almost limitless monopoly right, seriously diminishing the public domain as a result.

Lessig concluded that these changes represented a threat not only to our online freedoms, but to our offline freedoms as well. This was the theme of his third book, Free Culture, published in 2004. As he explains, "Free Culture is about how a reaction to the network could threaten values off the network. This was a reaction primarily driven by the content industry, which was concerned about copyright infringement on the network."

In short, in the process of seeking to preserve the old order (and their out-dated business models), content companies were also enlarging their realm, and their power. As a consequence, the traditional balance between the rights of copyright holders and the rights of consumers was being tilted away from consumers. Moreover, due to continuing media consolidation, more and more culture was becoming the exclusive property of a few large corporations.

As Lessig puts it, "never before in the history of free society has a fewer number of people exercised more legal control of the development and spread of culture."

Since creativity cannot take place in a vacuum, the erosion of the public domain consequent upon the changes in copyright law also threatened to stultify creativity, and impact negatively on cultural innovation. Creativity, after all, relies on being able to borrow from the past, and from other creators — in a process Lessig characterises as "rip, mix and burn".

In addition, Lessig had concluded that the increasing privatisation of culture, coupled with growing use of DRM, now posed a significant threat to free speech.

As well as teaching and writing about these dangers, therefore, in 1999 Lessig decided to do something proactive. Specifically, he spearheaded a legal challenge to the controversial 1998 Sonny Bono Copyright Term Extension Act (CTEA), which had extended copyright by an additional 20 years. Since it had done so retrospectively, it had also frozen the flow of content into the public domain, at least until 2019.

The first constitutional challenge to copyright limits to reach the US Supreme Court, Eldred v Ashcroft (as the case became) was a once-in-a-lifetime opportunity for Lessig to stem the growing privatisation of culture that he had come to deplore.

In arguing the case, Lessig claimed that by effectively making copyright a perpetual right, the CTEA had violated the requirements of the Constitution's Copyright Clause, which specified that copyright should be a time-limited monopoly.

He also argued that copyright law should be subject to scrutiny under the First Amendment, with the aim of ensuring a balance was maintained between freedom of speech and the rights of copyright holders. This, he argued, the CTEA had failed to do. To Lessig's great disappointment, however, in January 2003 the Supreme Court upheld the CTEA.

Undaunted, Lessig concluded that in making its judgement the Supreme Court had, by implication, conceded that copyright law should be subject to First Amendment scrutiny — if it affected the "traditional contours" of copyright.

In March 2004, therefore, he launched a new legal challenge (Kahle v Gonzales), asking a US district court to declare as unconstitutional — when considered collectively — the Copyright Act of 1976, the CTEA and various other changes to the copyright law.

Essentially, Kahle v Gonzales raises the claim that by removing the need for creators to register and renew their works, Congress has indeed changed the contours of copyright, transforming it from a conditional to an unconditional system.

Until the 1976 Act, for instance, copyright protection in the US was only available to those who took affirmative steps to claim it — by registering their copyright, marking copies of their work with a copyright notice, and renewing it after a relatively short initial period of protection.

With these "registration formalities" removed, copyright automatically comes into existence at the moment of creation. Consequently, all forms of expression are now subject to copyright protection, generally for at least 150 years, regardless of whether the creators even want copyright,

The US Government responded by seeking a motion to dismiss Kahle v Gonzales, arguing that the case was little more than a vain attempt to re-litigate Eldred v Ashcroft. To this, Lessig counters that since the changes to copyright law have transformed it from an opt-in to an opt-out system the case makes a very different point.

In December 2004, however, the US District Court, Northern District of California, did indeed dismiss Kahle v Gonzales. Unprepared to give up, Lessig and his fellow litigators responded by appealing the case to the Ninth Circuit. For the moment, therefore, the outcome remains unknown.

By now, Lessig had also opened a third front in the free culture wars: Having relocated to Stanford Law School in 2000, he shortly thereafter (in 2001) co-founded Creative Commons.

A San Francisco-based non-profit organisation committed to expanding the range of creative work available for others to legally build upon and share, Creative Commons provides alternative licensing and contract schemes to allow creators to waive some of the rights that copyright automatically assigns to them.

In effect, Creative Commons has taken the battle to the streets — by encouraging creators to reject the "all rights reserved" approach of traditional copyright, in favour of a "some rights reserved" model. The logic is that even if the copyright regime automatically grants excessive monopoly rights to creators, there is nothing to stop them from unilaterally waiving some or all of those rights.

Lessig's work on Creative Commons, coupled with his writing and his litigation, has made him the de facto leader of the "Free Culture Movement". Being a modest man, however, he is keen to share the credit. The ideas expounded in Free Culture, he insists, are "'merely' derivative", since they are heavily based on the ideas of Richard Stallman and the Free Software Movement.

This is undoubtedly the case: Creative Commons licences owe a great debt both to Stallman's general notion of copyleft, and to the specific model he created with the General Public Licence.

Stallman, however, is less generous. Expressing disappointment with the book Free Culture, he describes Lessig's views as being "less ethically firm" than his. He has also asked Lessig to withdraw two Creative Commons licences, on the grounds that they do not give people the right "to distribute verbatim copies non-commercially".

What is the central point of difference between Stallman and Lessig? Stallman insists that people should have a fundamental right to copy creative works. Lessig, however, argues that the appropriate freedoms and rights must always be contingent on the specific circumstances of a situation — a reality reflected in the growing variety of different Creative Commons licences.

In some cases, for instance, the right to copy is actually superfluous, he says. Thus for an African child who speaks no English, having the right to copy an English-language textbook is worthless. What is far more valuable in such circumstances, Lessig argues, is the right to create a derivative work — in other words, to have the book translated.

Stallman is not the only critic of Lessig and the Creative Commons. In 2005, for instance, Debian software programmer Benjamin Mako Hill published an essay complaining that Creative Commons "sets no defined limits and promises no freedoms, no rights, and no fixed qualities."

This, responds Lessig, is simply not true. Instead of carping, he adds, critics should show "a little bit of humility", and listen to what creators and consumers say is important. "Rather than marching in with a set of defined principles that come from who knows where, and imposing those regardless of the views of those who live in that particular domain, they should listen to what these people say to them."

What such disagreements surely demonstrate is that the wider free knowledge movement looks set to become more diffuse and more complex as it develops.

What is notable about the current debate is that where the disagreement between Open Source and Free Software advocates is expressed in terms of pragmatism versus ethics, both sides in the Free Culture debate take an ethical position, but disagree on the specific ethics and values that ought to be promoted.

What is perhaps most significant about the Free Culture Movement is that it has transformed a discussion that was primarily focused on specific types of information and knowledge (be it digitised books, software code, or news reports), into a more wide-ranging debate about culture, and how it is produced. In doing so, it has underscored the importance of collaboration in cultural production, and the dangers inherent in restricting that collaboration, not least by overly restrictive intellectual property laws.

In short, by getting us to think about the issue in terms of culture, Lessig has reminded us that in some areas of human activity too great an emphasis on private ownership impoverishes everyone. After all, if culture is impoverished, we are all impoverished — in a kind of reverse "Tragedy of the Commons."

Seen from this perspective, copyright (and intellectual property generally) ceases to be an esoteric lawyerly preoccupation, and becomes a central part of a more wide-ranging debate about the future health and vitality of our collective endeavours in the digital, networked world.

Since this new world enables far greater collaboration it inevitably requires greater openness. Moreover, by seeking to cling to traditional closed models we are in danger not only of eroding freedoms we have long taken for granted, but of stultifying cultural innovation too.

It is important to stress, however, that this does not mean that copyright and intellectual property have no role in the new world — although its role may need to change. As Lessig points out, it's simply a question of balance.

The problem right now is the balance has gone seriously awry, and if we don’t head the danger signs it will become even more skewed.


Lawrence Lessig is a very busy man, so getting to speak to him proved challenging. I eventually succeeded by booking his time several months in advance, and splitting the interview into two telephone calls. This included a call to his office in Stanford, where I managed to stretch a half-hour slot into a 75-minute conversation, and a call to the Grand Hotel in Oslo — where he was staying for one of the many events he attends to promote free culture.

Built in 1874, the Grand Hotel seemed a fitting venue for a man Steven Levy has dubbed the Elvis of Cyberlaw: over the years it has attracted heads of state, Nobel Peace Prize winners, and other high-profile personages like playwright Henrik Ibsen, and Roald Amundsen (who visited the hotel in 1912 on his return from a successful expedition to the South Pole).

As a sign of the pressured life Lessig leads — or a demonstration perhaps of the dangers inherent in visiting a northern European city when you are accustomed to the temperate climate of the West Coast of America — Lessig had succumbed to a cold virus by the time I caught up with him in Oslo. As a consequence, our conversation was regularly interrupted by his coughs and sneezes.

I was also intrigued when later listening to the tape of our conversation to detect the sound of a child in the background. Was Lessig multi-tasking: engaged simultaneously in the itinerant care of his 18-month old son, while being interviewed by a journalist? Or had our ether-borne voices become somehow mingled with another conversation, in another town, possibly in another continent? Whatever the explanation, it seemed an appropriate reminder of the vagaries and ambiguities of virtual encounters.

Certainly I was disappointed not to meet the Elvis of Cyberlaw in the flesh — if only to be able to compare my impressions with those of others'. What I did know — if only from glancing at Lessig's picture on his blog — is that he has a suitably professorial cranium, a characteristic that sees him invariably cast as the archetypal egghead. Referring to Lessig's "startlingly high forehead" in his Wired article, for instance, Levy commented: "it's almost as if, in an attempt to accommodate his brain, the top of his head was pulled up a couple of inches, like an image stretched by Kai's Power Tools."

Indeed, one is tempted to conclude that Lessig may be little over-intellectual — a characteristic that could explain his occasional naivety or, let's call it, impracticality.

When preparing the argument for the Eldred v Ashcroft case, for instance, Lessig's fellow litigators repeatedly insisted that the case would only be won if they were able to demonstrate to the Supreme Court that "dramatic harm were being done to free speech and free culture". Lessig, however, ignored this advice. As he put it in his subsequent mea culpa, "as a law professor, I had spent my life teaching my students that this court does the right thing, not because of politics but because it is right." For that reason, he added, "I was not persuaded that we had to sell our case like soap."

After losing the case, however, he had to concede that he had "failed to recognise that however much I might hate a system in which the court gets to pick the constitutional values that it will respect, that is the system we have."

Equally striking was his confession, in late 2005, [after this interview was conducted] that he had only just realised that the rapidly expanding set of free licences was not always compatible. This, he added, meant that, for legal reasons, content released under one free licence cannot always be combined with content licensed under another free licence.

This "embarrassing" oversight, he admitted, meant that the very tools designed to promote it were subverting a primary aim of the Free Culture Movement. As he conceded, "All of these licenses were written without regard to the fundamental value of every significant advance in the digital age — interoperability."

In his Wired article Levy described Lessig as a "private, even shy, person" who before an audience suddenly becomes electric. Certainly I detected a striking contrast between his answers to personal questions, and those concerning his ideas.

In the former case he replied so briefly, and so quietly, that I was not always sure that he had indeed responded — a characteristic that played havoc with my voice-activated tape recorder, which repeatedly switched itself off at inappropriate moments, leaving me with a somewhat disjointed transcript. When Lessig felt able to take flight with an interesting idea, however, his voice became animated, full, and clear.

Nevertheless, in reviewing the tape I was left with a somewhat hazy understanding of Lessig's politics. How precisely, I wondered, did the right-wing libertarianism of his childhood differ from the "matured libertarianism" he professes today? Such distinctions were either too subtle, or too foreign, for my European sensibilities.

What is not in doubt is that Lessig is widely viewed as a liberal, and he supports a host of "right-on" causes. He is also prepared to walk the talk — in 1985, for instance, he smuggled a heart valve for a Jewish dissident into the Soviet Union, hiding it in the crutch of his pants.

He is clearly also committed to the sharing principles espoused by the Free Culture Movement. A new version of his book Code, for instance, is being produced as "an online, collaborative book update" on a Wiki. The aim is to draw upon "the creativity and knowledge of the community." In addition, Lessig has indicated that the royalties from the book will be donated to Creative Commons.

In 1999 Lessig married the German-born human-rights lawyer Bettina Neuefeind — who investigated Kosovo war crimes, and now supports homeless people in San Francisco.

Interestingly, Lesig's natal family are also German in origin. Arriving in North America as Hessian mercenaries during the American Revolutionary War, Lessig's forebears were hired by the British to fight the rebels.

For Lessig — whom many now view as the Commander-in-Chief of the war for independence in Cyberspace — it is a strikingly apposite lineage except that, unlike his ancestors, he has chosen to fight on the side of the rebels, not the ancien régime


If you wish to read this interview in its entirety please click on the link below. I am publishing it under a Creative Commons licence, so you are free to copy and distribute it as you wish, so long as you credit me as the author, do not alter or transform the text, and do not use it for any commercial purpose.

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I would like to acknowledge the help of the Open Society Institute, which provided a small upfront grant to enable me to get started on The Basement Interviews project. Further information about The Basement Interviews can be found at the Open and Shut? site.

To read the interview in its entirety (as a PDF file) click here.

1 comment:

dguido said...

Thank you for sharing this interview. I am a student taking an online course and and our assignment for this week was to watch Lessig's video on copyright issues and read chapter 10 of Free Culture. You have helped me in understanding the man behind the opinions.