The Control of Ideas

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

By Lawrence Lessig. Random House, 352 pages, $30.00

Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity

By Siva Vaidhyanathan. New York University Press, 243 pages, $27.95

A specter is haunting culture: the specter of intellectual-property law. Soon every embodiment, however ephemeral, of thought or imagination may be defined as a "product," its every use commercially controlled. Thanks to digital technology, as Lawrence Lessig pointed out in his Code and Other Laws of Cyberspace (1999), a book is potentially no longer just a book. An online publisher, for example, will be able to specify

whether you could read the book once or one hundred times; whether you could cut and paste from it or simply read it without copying; whether you could send it as an attached document to a friend or simply keep it on your machine; whether you could delete it or not; whether you could use it in another work, for another purpose, or not; whether you could simply have it on your shelf or have it and use it as well.

Similar restrictions will apply to compact discs, videos, Web sites, databases, software applications, and anything else that is encoded or transmitted digitally. All of them will be packaged with programs that can monitor, and then either charge for or block, every imaginable use.

Why is this "propertization" of culture disturbing? One reason is its possible effect on equality. The present unmetered World Wide Web is analogous to the public library and broadcasting systems, which at least in principle foster social equality by making cultural resources available on equal terms to the rich and nonrich. Another reason is its effect on community. To adapt Cass Sunstein's perspective in, increasingly individualized consumption packages may well increase cultural fragmentation.

In his new book, The Future of Ideas, Lessig emphasizes another reason: the likely ill effects on innovation. Whatever other harm the new law of intellectual property may do, he warns, it will probably also chill the remarkable creativity associated with the pre-commercial Internet. Up to now, new ways of connecting to the Net, communicating on the Net, and, perhaps most important, distributing art, ideas, and information across the Net have been devised at an amazing rate. By and large, this was not done for profit.

Consider the "architecture" of the Internet. The GNU/Linux operating system (the world's fastest-growing and a serious rival to Unix), the Apache server (two-thirds of all servers on the Web), the Perl programming language, the BIND (Berkeley Internet Name Domain) system, the "sendmail" program (which runs on 75 percent of all servers), and the protocols of the World Wide Web--"these projects," Lessig writes, "together constitute the soul of the Internet." They are the revolution. All of them were developed as, and remain, "open code" projects. That is, the code in which they are written is unowned or is governed by a "General Public License," a permissive form of copyright that allows anyone to modify the code, provided he or she makes those modifications available free to everyone else. The code that enables the Internet is thus common property. It is, to use a traditional term that Lessig adapts to cyberspace with extraordinary rigor and originality, a "commons."

A commons is a resource that is available to everyone (or everyone in some community) without permission. The term will be familiar to many readers from Garrett Hardin's well-known argument about the "tragedy of the commons." To take Hardin's example: If a pasture is held in common, the benefits of adding to one's herd will accrue to oneself, while the costs will be shared. The result is overgrazing and a ruined pasture. The solution is exclusive property rights.

This little parable has played a large part in forming contemporary intuitions about political economy. The belief that private control almost invariably produces the most efficient use of scarce resources is part of the common sense of market societies and is regularly invoked in order to oppose state regulation or public ownership. But as Lessig makes clear, this maxim does not apply straightforwardly to intellectual resources--a point that media studies professor Siva Vaidhyanathan also makes in Copyrights and Copywrongs.

Pasture is what economists call a "rivalrous" resource. One person's (or cow's) consumption leaves less for others. Culture is a nonrivalrous resource. One person's consumption leaves no less for others. Rivalrous resources can be depleted; nonrivalrous resources cannot. From the point of view of efficiency, it follows that different kinds of property rights should govern the two kinds of resources. In Lessig's formulation:

If the resource is rivalrous, then a system of control is needed to assure that the resource is not depleted--which means the system must assure that the resource is both produced and not overused. If the resource is nonrivalrous, then a system of control is needed simply to assure that the resource is created... . Once it is created, there is no danger that the resource will be depleted. By definition, a nonrivalrous resource cannot be used up.

With a nonrivalrous resource, one can have a commons without the tragedy. In Code and in The Future of Ideas, Lessig shows at great length that the precommercial Internet was the site of much rapid and fruitful innovation precisely because it was a commons. And he shows at even greater length that the evolution of intellectual-property law--driven by corporate leviathans and their lawyer-gnomes, and articulated by free-market ideologues on the judicial bench--is drastically changing the open character of the Internet, enclosing the commons.

What is the character of the Internet, and what does it have to do with innovation? "How the Internet was designed," Lessig claims, "intimately affected the freedoms it has enabled... . And arguably no principle of network architecture has been more important to the success of the Internet than this single principle of network design--e2e." The term means "end-to-end." Between the edges, or ends, of the network (that is, individual users) was a simple, neutral data-transport system that would run whatever new applications were programmed in at the ends, no matter who owned the wires and machines in the middle. This meant that anyone could invent and distribute new applications or modify existing ones. And a great many people--scruffy graduate students, lowly coders, bored engineers, and scientists diddling around on company time--did. GNU/Linux, Apache, the Internet and Web protocols, and so on, were collective achievements.

This end-to-end "architecture of freedom" guaranteed progress but not profits. So, large, vertically integrated companies are moving to substitute an architecture of control, breaking up end-to-end by "layering onto the original code layer of the Internet new technologies that facilitate greater discrimination, and hence control, over the content and applications that can run on the Net." Microsoft has used its control over Windows' source code to prevent Windows users from switching to non-Microsoft Internet browsers, like Netscape Navigator. AOL Time Warner hopes to combine its vast resources of broadband cable pipe, network access, and content in ways that will handicap competitors and box in customers. Cable companies that provide Internet access artificially limit "video streaming," since streamed video is a potential competitor of cable programming. Freelancers compiled wonderfully comprehensive new archives of popular music that stimulated much musical experimentation among people without access to expensive equipment. But lawyers for the recording industry have pretty much choked off such unfettered innovation.

Besides these strategies for heading off novel technical uses of digital media, there are also powerful new surveillance techniques for clamping down on even the most casual uses of content. Intellectual-property advocates "obsess about the ability for content to be 'stolen,'" Lessig notes, "but we must also keep in view the potential for use to be more perfectly controlled." For example, computer programs called "bots" scan the Web for copyrighted content and report back to their corporate masters.

The pattern here is extremely common. Copyright holders vaguely allege copyright violations; a hosting site, fearing liability and seeking safe harbor, immediately shuts down the site. The examples could be multiplied thousands of times over, and only then would you begin to have a sense of the regime of control that is slowly emerging over content posted by ordinary individuals in cyberspace. Yahoo!, MSN, and AOL have whole departments devoted to the task of taking down "copyrighted" content from any Web site, however popular, simply because the copyright holder demands it. [Bots] find this content; ISPs [Internet service providers] are ordered to remove it; fearing liability, and encouraged by a federal law that gives them immunity if they remove the content quickly, they move quickly to take down the content.

Filmmakers are also hard hit. Evocation by allusion is common to all art. But numerous movies have been held up because the director made passing use of something that someone had, however implausibly, copyrighted. Every image, every melody, every brand name, "every piece of artwork, any piece of furniture or sculpture, has to be cleared before you can use it," a director tells Lessig. Every shot has to go through the studio's legal department. Independent filmmakers, with no studio behind them, have to self-censor or take their chances. "The cost," one of them complains, "is creativity. Suddenly the world you're trying to create is completely generic and void of the elements you would normally [make use of]." As Lessig comments: "This is not a picture of copyrights imperfectly protected; this is a picture of copyright control out of control."

Lessig and Vaidhyanathan tell many such stories, depressingly similar, about the cable-TV, music, film, publishing, and software industries. In each case, new modes of creation and distribution enabled by the Internet threaten the market share of big players. The behemoths respond by "locking up" their products with encryption software, requiring users to sign away even traditionally protected rights of "fair use," using their ownership of source code or of supply-and-distribution networks to marginalize potential competitors, or simply threatening newcomers with ruinously expensive lawsuits. Only federal regulation can preserve the open environment that elicited such remarkable innovation in the recent past. But it won't happen. The courts--where most federal judges are now appointees of Ronald Reagan or the two George Bushes--forget to balance private claims against the public interest and instead give the behemoths what they want. Legislators, intensively lobbied and campaign-funded, also cave in.

This shrinking of the public domain is not at all what the nation's founders had in mind. Constitutionally speaking, intellectual property is not like other property. Section 8 of Article I reads: "The Congress shall have Power ... to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." It is clear, as Lessig and Vaidhyanathan show, that the founders did not intend to give creators (much less their corporate employers) unlimited ownership rights. Unlimited exclusive control, they recognized, would stifle progress. The purpose of copyrights and patents is to promote innovation; the proper goal of copyright and patent law is to strike a balance between incentive and access, between rewarding achievement and facilitating more achievement.

Besides, being sensible persons and not Chicago School doctrinaires, the founders understood that "Science and useful Arts" are to some extent a gift economy. Gratitude, the pleasure of discovery, the impulse to self-expression, and devotion to a common enterprise motivate creators quite as much as lucre. Of course, artists need to make a living, and even to get rich. Lessig, who clerked for Richard Posner and Antonin Scalia, is not an anarcho-communist. But the real point is to keep the tune flowing, the conversation alive, the gift in motion. Poets, jazz musicians, filmmakers, physicists, and coders know this. It's not their fault (and it's not primarily for their benefit) that the balance has been lost--that, as Lessig laments, "the ability to propertize culture in America is [now] essentially unlimited ... even though the plain text of the Constitution speaks volumes against such expansive control."

In Copyrights and Copywrongs, Siva Vaidhyanathan covers much of the same ground as The Future of Ideas but pays more attention to history and sociology and less to technology and legal theory. Three chapters on the history of copyright in literature, film, and music (this last with fascinating material on blues and rap) are framed by two analytical chapters, one surveying the common-law roots and constitutional meanings of copyright, the other assessing the likely cultural consequences of the revolution in intellectual-property law. Smoothly written and equable in tone, it makes a valuable supplement to Lessig's brilliant but slightly hectic exposition.

"A republic, if you can keep it," Benjamin Franklin is said to have answered someone in the crowd outside Independence Hall who asked what the deliberations inside had produced. We've done an indifferent job, as Christopher Lasch, Walter Karp, Robert Wiebe, and others have reminded us. An important feature of that republic was a culture of innovation made possible by laws that found a reasonable balance between commerce and creativity. This feature, like the culture of deliberation that briefly flourished in the early Republic, is being eroded by the pressures of competition and concentration. Lessig himself, as skeptical as Franklin, doubts that these pressures will be successfully resisted in the end. But at least, thanks to Code and The Future of Ideas, Vaidhyanathan's Copyrights and Copywrongs, Sunstein's, Seth Shulman's Owning the Future, and a few other farsighted works, we need not be herded altogether passively into the global cyber-playpen.