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Code + Law: An Interview with Lawrence Lessig

Legally and Technically, Hollywood Is Assaulting Some Basic Rights

by Tim O'Reilly and Richard Koman
01/29/2001

Lawrence Lessig Lessig: "Code plus law is combining to reduce rights consumers used to have."

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Lawrence Lessig is perhaps the most prominent legal thinker on the intersection of the law and the Internet. He will deliver a keynote titled "Free Code, Freeing Culture" at the O'Reilly Peer-to-Peer Conference on Friday, Feb. 16. Lessig is a professor of law at Stanford Law School. He was the Berkman Professor of Law at Harvard Law School. From 1991-97, he was a professor at the University of Chicago Law School. His book, Code, and Other Laws of Cyberspace, is published by Basic Books. In 1999-2000, he was a fellow at the Wissenschaftskolleg zu Berlin.

Tim O'Reilly and openp2p.com editor Richard Koman interviewed Lessig by phone.

Tim O'Reilly: You made a statement that we've put in our conference brochure: "This is the next great thing for the Internet. We haven't even begun to understand or imagine the possibilities." What is your thinking about peer-to-peer?

Lawrence Lessig: As your conference makes plain, people have come to realize that as the power of local machines increases and as networks become always-on and easier to negotiate, the opportunity of using machines at a distance - an idea that is consistent with the original end-to-end principle of the Internet - has finally been realized. The contexts in which these could occur have begun to expand far beyond the first set of applications that we've seen in the context of sharing music. So, there is excitement about this extraordinarily underutilized resource that can begin to do work that would be extremely expensive to do if it had to be done on a single system, or work that could be done much more cheaply because it's able to be distributed. That insight is then mixed in with a traditional Internet excitement about the trouble that can be caused by this explosion of an uncontrolled or difficult-to-control architecture that facilitates that people will do what they want to do.

O'Reilly: The thing that struck me most in your book was your point that when wiretapping first came before the Supreme Court they said, "It's no problem," because the history of invasion of privacy was based on the idea of somebody actually coming into your premises. And it wasn't until 40 years later when the telephone had become truly ubiquitous and part of everyone's life that the Supreme Court revisited the issue and said "oops." That struck me as a backdrop theme for some of the rise of computer networking and a lot of the social issues that we are struggling with, where people out there on the hacker fringe for whom living on the network is daily life, have a very different view than legislators, who may not use the computer or whose secretary uses the computer. I'm wondering about your thoughts on the rise of networking and the ways that it is going to change the legal regimes that are necessary in looking forward.

Lessig: There are two stages in Internet history so far, which are important to distinguish. The first stage climaxes around 1997, when the Supreme Court decided Reno v. ACLU (the case striking down the Communications Decency Act). This case represents a time when the world looked at the Internet and said, "This is an amazing new technology that we've got to be extremely respectful of." The overriding tone of the opinion is, "Congress, you must go extremely slow when you regulate in this area to make sure that you don't muck up this extraordinarily important First Amendment free-speech context, which is the Internet."

Now that, historically, is a very surprising fact, because as your point about wiretapping brings out, before these new technologies came along, the first reaction of the judiciary was to poo-poo their significance. But in the first stage of Internet history, the Supreme Court was extremely respectful of the Internet and its potential, and there was still a very strong commitment to the idea that we not muck it up with regulations.

But now, in the second stage of Internet evolution, when it comes to copyright issues, that attitude has disappeared. So with the emergence of P2P architectures (which are being used to exchange music in ways that upset the music industry), rather than the court responding in the way that it did in Reno v. ACLU, the courts are in a knee-jerk way acting to shut down this emerging technology on the view that unless you stop it, it will be the end of copyright.

Now, the second stage of Internet history is the really dangerous response that conferences such as yours need to resist. Because to the extent the legal system perceives this new technology as focused on one particular application, then the development of this new architecture will be hampered by that one application's legal baggage. But it is as silly to think about P2P as applying just to music as it would have been to think about the Internet as applying just to pornography. Whatever the initial use of the technology, it has nothing to do with the potential of the architecture to serve many other extremely important functions.

So much of the legal battle that's going is just to get the court to be as deferential and patient with this emerging architecture as it was in the context of pornography. If you had to choose between protecting children and protecting Hollywood, you would think you would make an exception (to the law) to protect children. But, perversely, our legal system has said children are going to be left to the winds of the Internet and parents have to take care of that themselves, but we're going to march in and back up the power of Hollywood with the courts as quickly as we can to make sure that copyright interests aren't invaded.

O'Reilly: So what has caused the difference?

Lessig: The cynic in me says the lawyers defending Hollywood are better paid and they've got better suits. I think the reality is that copyright law has for a very long time been a tiny little part of American jurisprudence, far removed from traditional First Amendment jurisprudence, and that made sense before the Internet. Now there is an unavoidable link between First Amendment interests and the scope of copyright law. The legal system is recognizing for the first time the extraordinary expanse of copyright regulation and its regulation of ordinary free-speech activities.

I think that when these cases eventually work their way to the Supreme Court (if the companies that are being sued are around long enough to push them to the Supreme Court), the court will actually restore balance to this discussion in a way that will help protect innovation in the space. But now the real danger is that the recording industry has succeeded in its objective, which as Hillary Rosen (president and CEO of the Recording Industry Association of America) said, is to guarantee that no venture capitalist invests money in new modes of distribution unless Hollywood signs off. Well, that's to reinforce an old model of creativity that I think the Internet has the opportunity to destroy.

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