Lunch with Lessig

Historically, transformative technologies have been allowed to take root and then congress steps into create balance between the rights of the copy write owners and the consumers. But Hollywood has compelled congress to step in early to deploy laws in the name of “piracy” to control the network--in Lessig’s view thia is a move to preserve an existing business and prevent competition. Why is congress doing this (though it is not clear if Hollings’ bill will pass)? Because “no one pays the government to encourage innovation, they pay the government to protect from competition.” Good point.

Lessig acknowledges there is a real issue in protecting intellectual property, and he divides the issue in to existing content and new content. For existing content there are only two choices: 1) compulsory license, 2) build bunch of technology so no one can pirate

A compulsory license, Lessig’s choice, would entail the setting of a price for digital content and then allowing anyone to license content at will—similar to how music is licensed on radio. The second approach, the favorite of Hollywood since it gives them control, in addition to squashing innovation and being technologically very costly and perhaps impractical, would also give copy write holders greater rights over content than they have ever had. In the past the technology didn’t exist to prevent me from lending you my book—but that amount of control could exist if Hollywood had its way.

Compulsory license would only be for existing content, but going forward Lessig supports creating digital rights management (DRM) technology as long as it respects “fair use,” which he defined as “all uses that are not commercial competition.”

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I asked Lessig, who described himself as a liberal Democrat, about the politics of this issue since Senator Hollings is a Democrat. He pointed out that the politics are mixed here—and the traditional left/right political spectrum doesn’t necessarily apply (for more on this, read this piece in R21). He pointed to the mixed politics around a case he is arguing before the Supreme Court, Eldred v. Ashcroft, to oppose extending the terms of copy writes. It has received support from many on the right, including Phyllis Schlafly, Milton Friedman, and Thomas Hazlett. The lines seem to be drawn around control vs. freedom.

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Speaking of Thomas Hazlett, I asked Lessig what he thought of Hazlett’s views on liberalizing US spectrum allocation. Lessig said that Hazlett is the most respectable voice in the pro-property view of spectrum. (Essentially Hazlett wants to reform and eliminate many of the restrictions that the FCC puts on its spectrum licenses. For example, a license is now obtained only for a particular use, which prevents licensees from experimenting, innovating, or testing market demand for others uses for that spectrum.) And if it were just a question of who should allocate spectrum, the government or the market, Lessig would choose the market. But Lessig thinks that it is more complicated than that and that one shouldn’t think of spectrum as fixed, but rather in terms of bits-per-second. With technologies such as ultra-wideband, more users actually INCREASE the bits/second of a given amount of spectrum. To assign all spectrum as fixed property, therefore, would quash important innovation, like ultra-wideband, that may only develop with the common spectrum approach. Bottom line for Lessig: we don’t know enough who’s right—the pro-property side or the common spectrum side—so we should try both: have some spectrum that is sold and some that is licensed.

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Finally, I asked about 802.11—the broadband wireless technology that is spreading rapidly through homes, offices, and cafes. 802.11 allows virtually anyone to share their bandwidth with anyone in the vicinity (within range). Cable companies, Lessig noted, are already trying to crack down on 802.11—if you set up a network and your neighbors use it, they claim that is theft. This battle will only get more fierce in the years to come.

For more pieces on Lessig read this Q&A about CBDTPA and other topics in BusinessWeek and this piece by Lessig in NY Times: Jail Time in the Digital Age.