By John Merrells

Overload, 10(50):, August 2002

Lawrence Lessig received a standing ovation for his keynote presentation at Usenix 2002 in Monterey California. Lessig is a professor of law at Stanford Law School, and a founder of the Stanford Center for Internet and Society. He is a cyberspace lawyer [ stanford ]. Usenix is a venerable and aging conference for operating systems academics and open source contributors. They are beardy Unix hackers [ usenix ]. I am beardless, and unixless, but I attended anyway as part of the yearly company beano.

Lessig has a gift for oration. His legal training and his many courtroom appearances have provided him with a highly polished presentation style. The pace of his delivery is measured, with a poetic meter that is hard to identify. The slides that accompanied his presentation were the most un-powerpoint-ey powerpoint slides I've ever seen, and were so numerous, and so smoothly transitioned, that they took on a filmic quality. His voice, his presence, and the visuals, combined to form a compelling platform for his message.

His talk, entitled 'The Internet's Coming Silent Spring', presented the argument that the Internet is being undermined by those that are threatened by the neutral and unrestrained innovation fostered by its network architecture.

Stories of the allowed

He introduced his topic by referring to a number of historical examples.

Firstly, he described the invention of FM radio by Edwin Armstrong in 1934. AM radio was plagued with static. FM offered higher fidelity, and greater range, but FM threatened the established broadcasting industry, in the form of RCA. RCA used the Federal Communications Commission (FCC) against Armstrong, by harassing him with patent infringement suits, and forcing him to switch frequencies. Twenty-three years to the day after patenting FM, Armstrong put on his hat, coat, scarf, and gloves, and walked out his apartment window, falling13 floors to his death. FM radio was not allowed.

Secondly, Lessig referred to the invention of Packet Switching by Paul Baran of Rand in 1964. Packet Switching was designed as a decentralized communications network that could survive nuclear attack. But, AT&T said: It "will never possibly work" and we'll be "damned if we'll allow the creation of a competitor to ourselves." The Internet was not allowed.

Thirdly, Lessig described the website that gave instructions on how to teach a Sony Aibo to dance Jazz. Sony invoked the Digital Millennium Copyright Act to have the code forcibly removed. Jazz was not allowed.

Lastly, Lessig told the tale of the Brothers Grimm and Walt Disney. The Grimm's unpleasant stories had passed into common property by the time Walt started making animated films. He quite legally borrowed from the stories liberally. In 1790 an author of a work owned rights over that work for 14 years. In 1832 that term was increased to 42 years, in 1909 to 56, in 1962 to 59, and then extended often until 1976 when it stood at 75 years. In 1998 the Sonny Bono Copyright Term Extension Act (aka the Mickey Mouse Protection Act) increased it to 95 years. Thus, no one shall do to Disney what Disney did to the Brothers Grimm.

Societies and Architecture

Lessig went on to describe the architecture of the Internet as a simple network, with smart applications. The benefit being that network users don't have to ask AT&T's permission in order to exchange information. The endto- end nature of the network architecture allows anyone to do anything with anyone. Furthermore, the number of innovators increases from one to many, and the kind of innovations change from those that benefit the network owner, to those that benefit the network users. For Example, the Internet was innovated by Vint Cerf and Robert Kahn. The World Wide Web was innovated by CERN of Switzerland. ICQ was innovated by Israelis. HotMail was innovated by Indians. What do they have in common? They were kids and non-Americans, and most importantly they were not the owners of the network. These innovations were the consequence of the architecture.

Within society policies are agreed upon, and then codified within a body of law. By analogy the policies of the Internet are its architecture, and the law of the Internet are the protocols and the code. The architectural policies are implemented within the design of the protocols, and within the actual implementations of those protocols.

The Internet is the content that is delivered, the code that implements the protocols, and the physical media it runs over; the cables and the spectrum. The code at the core of the network is being corrupted by the influence of the corporations that control the content and the physical media. The core is being corrupted whilst policy makers do nothing. They do nothing because of the framing of the debate.

Stolen Property

The debate is being framed in terms of property rights. Corporations own the property , and their property is being stolen .

For example, innovators are broadcasting cable content over the Internet. Just as the cable industry broadcasts network television content. That's "blood sucked from our veins" say the cable bosses. It's their property, and it's being stolen.

Another example is the Recording Industry Association of America (RIAA). They would rather have all consumer devices modified to prevent copying, than provide a digital distribution channel. Napster is theft!

Some historical context helps to highlight the shift in policy that has occurred. At the start of the 20th century there was a thriving sheet music business. Sheet music could not be copied and resold, as it was protected by copyright. An innovator created piano rolls, which were not a copy of the music, but a new form of distribution, so therefore the rolls were not infringing the right of any copyright holder. Piano rolls 'napsterized' sheet music. Similarly cable napsterized broadcast television, and the VCR napsterized the film industry.

In the past the law was fitted to the technology. Today the technology must fit to the law of the past. The shift is clear from the Napster case. The judge ruled that Napster must prove that their system was 100% free of copyrighted material. By comparison the innovators of the VCR only had to show that there were legitimate legal uses for their device. Would the VCR exist if the manufacturers had to prove that no one would ever use the device to infringe copyright holders rights? No.

This policy change has occurred because corporations wish to minimize competition. They want to be in the position of dictating which new technologies should be allowed.

The corporations want policy put into the code to protect their property.

Lessig believes that policy makers must be persuaded to acknowledge this policy change. The barrier is that everyone supports the protection of property owner's rights. Theft is after all wrong. But, reframing the debate can break down the barrier.

Is it property, and should it be owned? Should the Ford Motor company own the highways? How well would General Motors cars work on Ford Highways? The architecture of the Internet should be common property and should not be owned, as neutral platforms build innovation.

Is the property being stolen? Creativity has always built upon the past. The rights of the owner must be balanced with the rights of society. This is the precept upon which the patent system and the copyright system are based. Creativity breeds innovation.

The Internet should be free, free in the way Richard Stallman means free. We, the innovators of the Internet, should have the freedom to innovate, to tinker, to copy.

Silent Spring

Finally Lessig explained the meaning of the title for his talk. The book 'Silent Spring' was written by Rachel Carson in the early sixties. She single-handedly took on the chemical industry to stop the uncontrolled use of pesticides. A compelling chapter of the book describes a town where all life has been 'silenced' by the insidious effects of DDT. Lessig's ominous parallel is that if the attacks upon the core of the Internet are not defended, then the Internet will be silenced.

Code and Other Laws of Cyberspace

In closing, if you'd like to pursue more of the thoughts and writings of Professor Lessig you'll find information on his website [ stanford ] and in his recent book [ Lessig ], an excellent review of which was written by Mike Godwin [ Godwin ].


[stanford] http://cyberlaw.stanford.edu/lessig/

[usenix] http://www.usenix.org/

[aibopet] http://aibopet.com/

[Lessig] Code and Other Laws of Cyberspace, Lawrence Lessig, Basic Books.

[Godwin] http://www.oreilly.com/news/lessig_0100.html Review of 'Code and Other Laws of Cyberspace', by Mike Godwin.

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