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The End of Innovation?
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Koman: So is the problem the DMCA or is the problem the technologies put in place by the copyright holders, the DRM software?

"If you work for them you can describe weaknesses in encryption systems; if you don't, you're violating federal law."

Lessig: Well, in the first book that I wrote about this, "Code and Other Laws of Cyberspace," my real concern was the technology, and I said that the real danger would be when the technology's backed up by the law. Right now, it seems that the real problem is the law backing up the technology, because what that's doing is very quickly chilling the opportunity for some balance to be struck between the protections afforded by the technology and the rights of access that should, in a balanced copyright world, be granted to authors. Now both of these changes are coming about because there's this skewed view of the significance of protecting or finding perfect protection for copyright interests in cyberspace, which really sets it apart from many other similar problems or legal interests that could be protected in cyberspace.

So you could think about privacy as a legal interest that cyberspace undermines, or you could think of protecting children from pornography as a legal interest that cyberspace undermines. In those two cases, privacy and pornography, courts and legislatures have gone relatively slow in making sure that the securing of those interests -- protecting children or protecting privacy -- is not achieved at the expense of free speech or innovation in cyberspace generally. But in this one case of copyright, there's been this race to protect it as quickly and strongly as possible. And it's that which I think is skewing this process in a way that is undermining the opportunity for innovation, especially in the context of peer-to-peer systems.

Koman: So you find the judge's decision in the Napster case extreme?

Lessig: Yes, extreme, and fortunately the latest opinion from the District Court judge [Marilyn Patel] is so extreme that I think people are going to begin to get just how ridiculously extreme this is. You know, in that opinion, Napster had essentially said to the judge that they had found a way to make sure that 99 percent of the downloads would be essentially legal under copyright law. And the judge said, "99 percent's not enough for me. I want 100 percent," and so she basically ordered the company shut down until it could guarantee 100 percent. Now there's no technology that facilitates copying anywhere that's 100 percent effective. I mean imagine a court saying, "Xerox Corporation has to stop producing copiers until it can guarantee -- 100 percent guarantee -- that nobody will violate anybody's copyright law using a Xerox machine." But that's exactly the attitude, and it's that kind of extreme attitude that I think is most harmful to the opportunity for innovation here.

"Employees at Smith & Wesson don't have to fear arrest because their products led to somebody being killed, yet employees at software companies need to fear arrest because somebody may have used their code to steal a John Grisham novel."

Koman: What do you perceive about the public's attitude toward the sanctity of copyright these days?

Lessig: Well, fortunately I think it's beginning to change a bit. It's changing because people are just in a sense outraged with extremism that's being demonstrated by both the recording industry and now federal prosecutors. I think most people -- for example looking at the Sklyarov case -- most people think, here's this programmer, employed by a company in Russia who writes a bit of software that is legal in Russia. That software is then distributed across the Internet by his employer in a way that imports it into the United States. It's illegal in the United States because it violates the Digital Millennium Copyright Act. But he comes to the United States not to sell the software but to give a speech about the weaknesses in this encryption technology that's infused by Adobe to protect its PDF files. And Adobe essentially informs the government that this guy who's written software that's illegal in the United States is going to be in the United States and is going to be giving a speech criticizing Adobe. And the federal prosecutors arrest the guy.

Now I think most people look at this and think this is pretty extreme. I'm actually quite surprised that the government would have picked this as their first criminal prosecution under the Digital Millennium Copyright Act because it's not a clear case of piracy or of somebody developing a technology to enable people to steal lots of content. This technology enabled owners of e-books to do things with the e-books that, in many cases, would clearly have been fair use of the e-book.

Koman: So do I understand that he hasn't personally distributed the software in the U.S. or done anything except set foot in the U.S., after having written the software in Russia?

Lessig: Yeah, it's not clear what the relationship is between him and his employer, but he didn't sell it in the United States. What happened is the employer contracted with a company to facilitate online sales, and that company is the one that distributed the software in the United States, selling it through its online store. So that's what constituted the transfer in the United States that gave jurisdiction for an arrest. Now arresting him as opposed to holding the company responsible or holding that distribution company responsible is the interesting fact, and the government arrested him because he was essentially the copyright holder, at least of that version of the code. So it's those two things together -- that he wrote it and that it was distributed here -- that gave rise to the liability. And then whenever you're liable for violating federal law, if you stick your foot into the United States, you can submit yourself to jurisdiction to be arrested and prosecuted for that violation, so that's how they got jurisdiction.

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