Tom Zillner, Editor
The Future of Ideas: The Fate of the Commons in a Connected World
by Lawrence Lessig. New York: Random House, 2001. 365p. $24.95 (ISBN 0-375-50578-4).
Lessig has written another important book. His previous effort, Code, which has been reviewed in these pages, masterfully examined how the law and cyberspace coexisted and how the architecture of cyberspace constituted its freedom. In his latest book, The Future of Ideas: The Fate of the Commons in a Connected World, Lessig claims to have changed his focus to the relationship between the architecture of the Internet and innovation. He does this, but he also reiterates his point that changes to the architecture can curtail freedom. The Future of Ideas is worth the time to read because it touches on many ideas that have shaped and will continue to shape the Internet.
As a lawyer, Lessig knows how to lay out his arguments to make points effectively. He is also a good writer, so the prose is clean and clear. Lessig first defines some key terms; in particular, he provides an explanation of “commons” and “layers,” which are core elements to his arguments. Most readers are probably familiar with both concepts, so I’ll concentrate on Lessig’s use of the terms. A commons is a thing shared by all and free for others to take (although there may actually be a charge for access). Many of us are familiar with Hardin’s discussion of the tragedy of the commons, wherein resources held in common are depleted by use. Lessig claims that the Internet is a commons and that it, too, is on the verge of experiencing a tragedy of the commons, although of a distinctly different nature.
The term “layers” ought to be familiar in a communications context. There are different layers that can be identified in moving data and information around a communications network. For his purposes, Lessig identifies three: physical, logical or code, and content. In the case of the Internet, the physical layer is the hardware—the wiring. Lessig discusses code in two different ways. The first is as the underlying protocols and software that make Internet communications possible, primarily TCP/IP. He also talks about code as a more general term encompassing all software. Content is the highest form of layer. On the Internet, the clearest example of content is the material seen on Web pages.
There are many lawyers who know little of Internet technology. If it comes to that, most people don’t know much about the underlying technology. Lessig is quite knowledgeable and shows this by discussing the character of the Internet as what he calls an end-to-end (e2e) network. What he means by this is that the transport protocol, TCP/IP, is completely neutral as to the data it carries. Additionally, the “smarts” of the network are concentrated at its ends rather than on the network itself. This feature, which was part of the original intent of the Internet’s creators, allows for a tremendous amount of creativity in what is built on top of the transport protocol. For example, consider the Web. Building the Web was made easier by the fact that TCP/IP does not care what is contained in the packets it transports. It was also easy to build the Web because there was no need to get permission to run a new set of protocols; the Internet is open to all comers. It was the openness of the Internet to innovation that enabled the revolutionary changes the Web has wrought. In Lessig’s mind, innovation is enabled by the freedom of the commons.
In addition to the code layer offered by TCP/IP, Lessig sees the proliferation of free software as another commons. Among his examples are Apache, the free Web server, and Berkeley Internet Name Domain (BIND), the program that resolves addresses such as lessig.org into IP addresses of the form 188.8.131.52. These examples are commons because anyone can use this software and build new or enhanced software using its freely available code. It is not a commons that can suffer from the tragedy of the commons, because use or modification of the software does not deplete the resource. In fact, Lessig claims that the common availability of source code for software encourages innovation, a view not shared by everyone, but one that I think is correct.
Lessig believes that the commons of the code, in both the sense of the neutrality of the Internet and in the sense of free software, spurs innovation in a way that can only come from the fleet, not from older and entrenched companies that upgrade existing products only in incremental steps. There is no installed customer base that these new innovators need to worry about, so they can identify and develop what Christensen calls “disruptive technologies.”
This seems like a little slice of heaven. But, of course, there is a darker side to this picture. It’s a case of the old battling the new. Lessig examines the threats at the physical level (i.e., wires). Cable companies, many owned by Time Warner and AT&T, have policed their broadband access. Among other things, these companies may place limits on the number of minutes that a customer can use a streaming video connection, disallow the mounting of a server, or filter data and discard packets in an attempt to prevent file sharing. These measures constitute a restriction of the commons of the Internet.
In addition to restrictions on uses of the broadband connection, pro- viders also tend to limit the Internet service providers (ISPs) who can offer services across their connections. For example, AT&T has restricted choices to only @Home or Road Runner, and Time Warner is pushing AOL. This is another kind of constriction of the commons, according to Lessig. It’s not intuitive why this is the case, until you consider that the ISP itself may place barriers to full use of the Internet.
Lessig concludes that there are thus two models in competition with each other—the perfectly controlled world of the broadband provider and the freedom of the Internet. It is his claim that the fettered or restricted Internet stifles disruptive innovation. He even goes so far as to claim that such devices as firewalls also impose controls that may make sense locally but have a chilling effect on the Internet commons. I think he goes a bit too far in pointing to firewalls as a problem, but I think it’s generally true that the control by near-monopolies of a vast subsection of the Internet pipes is a bad thing.
Lessig delves into the morass of copyright law, patent law, and the efforts of the entrenched old to control all of the layers of cyberspace. In addition to the cable saga, there are other constituencies who want to place controls on the Internet. Prominent among these are copyright holders, who are concerned that the Internet offers a mechanism to quickly and easily disseminate the content that they own. And they’re right, of course—the Internet is a perfect medium to seamlessly move content. Corporate and campus attempts to limit peer-to-peer communication (P2P) aside, the Internet doesn’t care what’s being transported across it.
Lessig focuses on the physical world to discuss the stranglehold that entrenched copyright owners are seeking to place on the marketplace of ideas. Lessig harkens back to the original intent of the framers of the Constitution, who believed that copyright should only last for a limited time. Congress has made a mockery of this, consistently extending the term of copyright so that such valuable properties as Mickey Mouse don’t fall into the public domain. These physical world actions impinge, of course, on cyberspace. Copyright holders, particularly those represented by the Recording Indus- try Association of America (RIAA), have been rabid in protecting their intellectual property. At least the idea of having copyright robots inspect and remove copyrighted material from people’s individual PCs died aborning.
Lessig also laments the effects of patent law as currently interpreted. Until the 1980s, courts considered software and business processes to be unpatentable. Then it all chan-ged, as courts opened up patentability of software. One problem is that patent lawyers are ordinarily not computer-savvy, so they may not understand that a particular piece of software is not really novel. Patents are then granted that shouldn’t be, and the presence of patents curtails the richness of the Internet. Tim Berners-Lee, the father of the Web, says he has already “noticed its effect on Web development” (213). Richard Stallman, perhaps the earliest proponent of free software, says that such patents may be the worst threat faced by software developers. James Buchanan, a Nobel Laureate in Economics, suggests that there is an anticommons, wherein innovators are reluctant to work in an area in which patent holders could exert a claim on parts of the innovators’ work.
There is still another commons and another set of problems that comes with it—spectrum. These are the frequencies on which wireless devices, among many other things, operate. There are huge chunks of spectrum that have been carved out by commercial television and radio. There are also portions reserved for emergency, military, and amateur radio use. No one really owns their little (or big) slice of spectrum, but once they’ve been granted their slice, they are hard to displace. There are limited portions of the spectrum still available, and the FCC is loathe to hand these out for free. Instead, they will be auctioned to the highest bidder, clearly favoring the large telecommunications providers. Again, this is another potential tragedy of the commons, for it would be better to offer at least some part of the spectrum to be as open as the Internet, some of it offering the same TCP/IP connectivity found in the wired world. Of course, this already happens with wireless networks, but there may be limitations placed on these networks if the for-profit segment has its way. Lessig believes that spectrum is inexhaustible, with all of us able to take little bites out of it for tiny slots of time without harming others’ access.
I hope you are not as depressed reading this as I am in writing it. Lessig is persuasive in his argument that there are real and present dangers to the commons that is the Internet. Many of us have been aware of pieces of this problem, but have not seen the breadth and scope of it explored so rigorously and cogently.
Where do we go from here? is the question. Lessig provides a slim but content-packed chapter proposing solutions to the potential reining in of the Internet as commons. First, he proposes we open up portions of spectrum to function as a commons like the Internet. He offers concrete suggestions for how this might be done given the claims of many that spectrum is a scarce resource. Lessig also proposes that government should be helping to build infrastructure, providing as an example the work of Chicago in deploying dark fiber. This would be offered at some point to service providers.
The code layer is “the heart of the Internet” (246), and as such requires the most nurturing and protection. The danger to this layer comes from monopolists in two different contexts: the already discussed context of broadband cable, and the danger from companies like Microsoft that want to protect legacy software. Lessig apparently fears that the effort of Microsoft to protect its Windows operating system may spill over onto the Net, but he also views Windows itself as a barrier to the code commons, given that its source is not reviewable and open to change. What are the solutions? In the case of broadband, a solution Lessig offers is for government to simply require that any of the broadband players must offer Internet services consistent with the principles of e2e. That means unfettered, unfiltered access. As to the threat from Microsoft and possibly other entrenched legacy software vendors, Lessig suggests that the government should encourage development of open code by using it for all governmental computers, and share this code with anyone who’s interested. The government should also consider alternatives to commercial operating systems. He sees no need for a coercive approach, although many of us might like to see a more active approach in the case of Microsoft.
Concerning the content layer, Lessig proposes some interesting changes to copyright and patent laws. Currently, some works are protected for as long as 150 years, a mockery of the Constitution framers’ intentions. Lessig proposes changing to allow works to be registered and protected for up to fifteen five-year periods. If at any time during this period the copyright is not renewed it would fall into the public domain. Under this scheme copyright would be available for a maximum of seventy-five years. Lessig treats software copyright as a special case, and he has some revolutionary ideas for its copyright protection. Currently copyright for software is for the life of the author plus seventy years, or in the case of a corporation a flat ninety-five years. How can this contribute to the commons? Software would be laughably out of date by the end of the protection term. So Lessig proposes a five-year term of protection, renewable for another five-year period. But this protection comes with a stipulation: the copyright applicant must include a complete source code listing with registration, held in escrow by the Copyright Office. At the end of its protection, this code would be released to the public via the Copy- right Office’s server.
What of the contentious world of recorded music? Lessig looks back to piano rolls for the answer. When piano roll manufacturers transcribed music onto the rolls, music publishers complained that they were violating copyright. Congress intervened by requiring that the manufacturers pay a compulsory license fee for the piano rolls sold. This fee was not set by the publishers, so it was nominal. Lessig proposes that we do the same with recorded music: have an independent body set a reasonable fee that would be required for peer-to-peer sharing of music.
In the case of patents, Lessig suggests that the patent office study whether the patenting of software is more likely to aid innovation than harm it, and if the balance falls on the side of harm, that Congress should end software patentability. Tim O’Reilly of O’Reilly Publishing and Jeff Bezos of amazon.com jointly propose that business processes should only receive patent protection for a brief period of time, with Bezos proposing five years; Lessig would prefer an even shorter period. Lessig also suggests a closer look at royalty structures for patents, particularly with respect to software patents. Lessig seems less sure-footed in his brief exposition of proposed patent policy. It is easily the least helpful of the sets of recommendations that he makes.
This is a first-rate and important book to read. As Thomas Jefferson once said, “The price of liberty is eternal vigilance.” It’s time for many more of us to be more vigilant. It may be difficult or impossible to make all of the changes Lessig suggests, but there are signs here and there that the entrenchment of the old is being overcome by the new. The Web won’t go away, and neither will P2P file sharing, nor the next big thing that comes down the Internet pipe. In Congress, some leaders are fighting against the draconian measures that have and will be pushed by the more rabid organizations representing intellectual property holders. Per- haps the pendulum has moved as far as it will in one direction, followed by the inevitable return. In the meantime, read The Future of Ideas. It’s well worth your time.