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FUTURE OF IDEAS:
We can’t talk about the Internet without metaphors. It’s a highway or it’s cyberspace, and we variously live and lurk there, surfing and chatting, meeting our significant others and doing business. That figurative language is well-suited for a virtual world, but it’s a sign as well that we do not yet know how to speak directly of the experiences we have in that space.
Making rules in a space and place so hard to talk about is a tricky business. Even knowing what the rules are and who has made them can be a matter of argument. In an earlier book, Code: and other laws of cyberspace, Lessig, who recently left Harvard Law School (after clerking for judge Richard Posner and Supreme Court Justice Antonin Scalia) for the edgier and more wired world of Stanford University, argued that the controlling forces in cyberspace are deeply programmed into the architecture and operation of the network. In this new and provocative book, he carries forward that argument with a freshened polemical thrust.
The heady early days of frontier Internet, he argues, have blinded us to the reality: the ranchers are moving in, fencing off the plains, dragging along behind them the lawyers and the schoolmarms and (given the acceleration of Internet time) the giant agribusiness conglomerates as well. The great landgrabs take many forms, and Lessig opposes all of them.
For example, in the news since this book was written, Lessig has succeeded in getting the Supreme Court to agree to hear the case of Eldred v. Ashcroft, in which an online publisher is contesting the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998. This act extends the term of copyright to the creator’s lifetime plus 70 years. In other words, as things stand now, Irving Berlin’s “Alexander’s Rag Time Band,” written in 1911, will be protected by copyright until the year 2059, and money will go to Irving Berlin’s estate every time it is played until then—unless the copyright term is extended still further.
On such terms, Elvis Presley has already made more money dead than he did in his entire working career, and the estates of other pop artists of the last half century will be equally fortunate. Winnie the Pooh saw the light of day in 1926 and A.A. Milne died in 1956; Disney purchased the copyright some years ago but saw that the silly old bear would go free to roam the Hundred Acre Wood in 2006—the new act keeps him penned up until 2026. The term of copyright has been frequently revised and extended in recent decades (every time Mickey Mouse is at risk of going out of copyright, Disneyphobes observe) with the effect that the extraordinary outpouring of creative work that has marked the post-WWII world shows signs of never going out of copyright.
Should we care? Lessig makes a powerful case that we should. He advances and refines in this book the notion of the “commons”—the property shared by the citizenry, property essential to common creativity. Public spaces, common utilities (like highways), and creative work in the public domain are all places where the creativity of a culture can exercise itself to good effect. The fundamental technical dimensions of the Internet were constructed precisely to create a free and open space in which such commonality of interests could meet and interact fruitfully. But as that freedom has shown signs of impinging on the economic interests of the great media corporations, they have reacted by looking for technical and legal ways to restrict the possibilities of the new media in order to protect their old income. The other panicky legal enactment of 1998, the Digital Millennium Copyright Act, makes it frighteningly illegal to do anything (or even engage in theoretical research about doing anything) that might undermine technical devices created to restrict access to copyrighted materials.
Lessig is a pessimist in some important ways. Unless we act vigorously in the public fora—including the law courts—to oppose creeping protectionism, he argues, we will lose the freedom and opportunity that cyberspace offers. He stakes out a position that is neither “left” nor “right,” but libertarian and activist. An optimist in this space is one who holds that the power of the technical innovations already loose in the world is such that those who seek legal enactments to protect and restrict will in the end defeat themselves by their own cleverness and the energy of the culture will move elsewhere.
The optimists and pessimists share an important philosophical and societal issue. How far do we go in protecting the economic interests of individual and corporate members of the society? It can be argued that what’s good for Disney is good for America—jobs are created, money changes hands, and prosperity flourishes. But how far must we go to protect Disney? Will we look back 20 years from now and see the Disneys of this age in the way we now look back at the Welsh coal mines of a generation ago—industries that have outlived their usefulness? Will legal enactments designed to protect the old economy turn out to be a burden to the new that is finally shaken off, too late to help those they were meant to protect?
Against Lessig, I am an optimist, but would gladly share with him the sense that old and deeply entrenched ways of thinking about business and the mass media are unlikely to survive, and unlikely to go quietly. This year’s Penn graduates will live to see a world, I believe, in which both Disney and Microsoft have faded or disappeared. (Lessig’s book is published by Random House, once the cranky and creative offspring of Bennett Cerf, now a corporate wing of the German media conglomerate Bertelsmann. It’s still a free country.)
To focus on the “hot button” issues raised here is to do an injustice to this book. It is very much a partisan case in favor of a series of positions about the future of an information society, and deserves to be read, considered, and argued about, but it is surprisingly well written and lucid, and surprisingly comprehensive. If you have found the sound bites and newsmagazine tidbits about the controversies and possibilities of the Internet age hard to follow, this book includes not only polemic but extraordinarily clear and comprehensible accounts of how the Internet works, how it came to work the way it does, and what the issues and possibilities of the present and foreseeable future will be. Many will disagree with Lessig, but all can learn from him.
July 1, when he became provost of Georgetown University, Dr. James J. O’Donnell
was professor of classical studies and vice provost for information systems
and computing at Penn.
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2002 The Pennsylvania Gazette
Last modified 7/01/02