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The End of Innovation?

by Richard Koman
08/07/2001

2001 has been a bad year not just for dot-coms but also for people interested in preserving the public's right to fair use of copyright materials. From the shutdown of Napster and the DeCSS case to the prosecution of Dmitry Sklyarov, federal prosecutors and U.S. courts have acted in support of copyright interests and against the public's ability to use technology to secure fair-use rights. OpenP2P.com editor Richard Koman talked about these turns of events with Lawrence Lessig, a leading expert in Internet law and policy and a keynote speaker at the O'Reilly Conference on Peer-to-Peer and Web Services. Lessig will keynote at the conference on Thursday, Sept. 20.

Richard Koman: Your keynote is called "Preserving the Innovation Commons," and you just wrote a piece in the New York Times on the Dmitry Sklyarov case, so perhaps you can weave those together for us. What does Dimitri have to do with preserving the innovation commons?

Lawrence Lessig: The Internet under its original design built a platform that induced lots of innovation in applications and content. And it did this by embracing an end-to-end principle, which meant that the network would remain as simple as possible and push all of the intelligence and, therefore, innovation to the end. This is the vision that is now enabled by a peer-to-peer architecture, and it's the environment that has inspired the greatest amount of innovation around the Internet in its history.

"Technology is actually granting copyright holders more control over content than copyright law itself would require."

Now this architecture threatens existing interests, business interests and Hollywood interests, and in response to that threat there have been a number of changes that have occurred in both the technical and legal environment, aiming to undermine this platform for innovation, aiming to change it into a platform where it's easier for certain interests to exercise control over innovation on that platform. And the changes at the technical level include changes to the architecture, enabling network owners to exercise more control or discrimination over content that flows across their network or for applications that run on the network. And in the legal environment, the change is brought about by changes in copyright law essentially -- also patent law, but let's start with copyright law -- that radically increase the extent to which copyright holders can exercise control over their content.

Now these changes in the law were induced originally by the view that cyberspace would threaten copyright in a way that copyright has never seen before. But that assumption was based upon an assumption about the architecture of cyberspace, or the architecture of technologies for delivering content in cyberspace. And the assumption was that it will be relatively hard to develop technologies to protect content in cyberspace, and therefore there needed to be pretty significant new rules to reinforce those technologies. One set of these new rules is the rules enacted under the Digital Millennium Copyright Act, and one part of that is the anti-circumvention provisions of that statute, which essentially make it a crime to develop and distribute tools whose purpose is to crack a copyright protection system.

Now the problem with this technique for protecting copyright law is that copyright law itself is a very subtle and balanced legal regulation. It doesn't guarantee authors perfect control over copyrighted material. What it does is balance a certain incentive that is given to authors against certain public rights of access, and those are typically enforced through a fair-use doctrine but also through requirements that copyright be for limited times. Now those balances are typically enforced through court decisions that refuse to find infringement except when there is no fair use or except when it's legitimate copyright. When it's technology that's being used to protect copyright, however, that technology doesn't have to be as subtle or as balanced as copyright law is. So if you have a trusted system that is protecting certain content, there's no reason that trusted system would have to free that content for purposes of fair use or protect that content for just a limited time.

Now that means that technology is actually granting copyright holders more control over content than copyright law itself would require. And that means that when provisions like the anti-circumvention provision of the Digital Millennium Copyright Act are used to protect technology that's protecting copyright interests, the law is actually protecting a stronger copyright interest than copyright law itself would protect, because when you crack a technological protection system, even if it's for the purposes of fair use, the tools used to crack it are criminal under the anti-circumvention provisions. So the effect of fair use in a digital rights management world can shrink quite dramatically, and what this essentially means is that the power to develop technologies that enable the distribution and research into the technologies for encryption is essentially centralized into the hands of those digital rights management companies that are supporting mainly traditional Hollywood or media interests.

Koman: So what is your assessment of where we are in terms of the public's right to fair use and the public's right to access these materials?

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Lessig: I think both of them are being restricted, because the law is in both cases shifting a significant amount of power into the hands of existing copyright holders -- or you could more accurately say hoarders, because for example, the most popular copyrighted music is not generally diffusely distributed. It's concentrated in the hands of a relatively small number of companies, so the ability to get access to that content and the ability to control that content is increasingly concentrated, and what that means is that the right to research around these technologies is also concentrated. So, for example, there was an earlier case in April where Professor Edward Felten from Princeton University attempted to give a presentation of a paper that he and some colleagues had written describing weaknesses in the SDMI -- Secure Digital Music Initiative -- encryption systems, and the RIAA sent him a letter that essentially said that if you publish this paper you would subject yourself to enforcement actions under the Digital Millennium Copyright Act.

That means they are essentially asserting that the right of people to tinker with and describe weaknesses in encryption systems depends upon who you work for. If you work for them, you can do it. If you don't work for them, you can't without violating federal law. And that kind of concentration of the right to do research and describe weaknesses in encryption systems is antithetical both to a free society and to good security systems, because security systems depend upon open, easy abilities to describe weaknesses and critique them.

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