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The Future of Ideas: The Fate of the Commons in a Connected World

Author: Lawrence Lessig
Publisher: New York: Random House, 2001
Review Published: August 2002

 REVIEW 1: Arthur L. Morin

Am I in trouble already? On the copyright page of the book it states that "Random House and colophon are registered trademarks of Random House, Inc." If registered trademarks are intellectual property protected by law, and only the owner of the property can give consent for or sell its use, and I haven't gotten consent from the owner nor have I given the owner consideration (money) for using the trademark in the heading of this review, am I in trouble already?

If you laughed, or thought "can't see how," then you need to read this book. As soon as possible. This book in a sense is a sequel to Lessig's previous book, Code and Other Laws of Cyberspace (New York: Basic Books, 1999). Lessig, who previously has taught at the law schools of Harvard and the University of Chicago, is now at Stanford. He clerked at the Seventh Circuit Court of Appeals (for Richard Posner) and at the U.S. Supreme Court (for Antonin Scalia). He also writes for The Industry Standard (from the book jacket). The Future of Ideas answers three questions: First, what is the problem (and what is the relevance of the Internet); second, how serious is it; and third, what, for starters, to do about it.

What is the problem? The problem is that the field within which innovation and creativity occur is being taken over by subdivisions -- the fairy spirits of creativity are being threatened by the bulldozers carving out property rights. The sentence is less a metaphor than one might initially think. It will take a bit of explaining to see why (this is one of the purposes of Lessig's book -- a purpose which, in my view, he accomplishes). As Lessig points out, creators and innovators draw from and upon previous experience [1]. These individuals are from Lessig's point of view faced with a dilemma: how to protect their control of what they create or discover, while gaining access to the resources -- the work of others -- which are part of the raw material requisite for their own creativity. Lessig argues that the initial impetus in demarking property rights for intellectual property was to balance the need for access with the need to insure that there would be sufficient incentive for continued creativity and innovation. One might call this the middle ground between two extremes. One extreme could be called the 'free access' extreme -- where, for example, no copyright or patent rights exist. The other extreme could be called the 'no access' extreme -- where, for instance, anything in print (both the idea and its particular formulation) is protected from further use. At the 'free access' extreme, when the work of others is too freely available, then a potential innovator may be hesitant to put her work on paper or in some other tangible form. Consequently the level of innovation and creativity is less than is socially beneficial - because that potential innovator faces the possibility that the reward for the sweat of her labor will end up in the hands of another and will therefore be more reluctant to be creative and innovative. At the 'no access' extreme, when the works of creators or innovators become unavailable -- when the past is locked up (through copyright, patents, and 'closed' code, for example) -- those works that others would use as 'raw material' for creative or innovative purposes are out of reach; consequently, the level of innovation and creativity is less than is socially beneficial. While the path to either extreme from the middle is different, the end result is the same: less innovation and creativity than is socially desirable.

To return to the original point: In the USA, the initial impetus behind recognizing and protecting intellectual property rights was to find a balance between these extremes. Initially, the rights to intellectual property were more limited in time and more narrowly circumscribed -- that is, the 'property' was more accessible to others -- than is the case today. The logic was that the limited protections helped keep the incentive to innovate in place while also allowing others access to the work under protection (the 'fair use' principle, for example), thus protecting the field within which creativity and innovation could flourish [2]. Lessig warns us that what is happening is that the field of creativity is being taken out of play.

The Internet is relevant to this problem in at least three ways. First, it is relevant because it is an example of how to structure a 'field' in which creativity and innovation can flourish. When it was first created, the system was structured (a) in such a way that no regard was given to the type of message being sent, therefore there was no privileging of message or messenger except with regard to who came first; and (b) in such a way that complexity was at the edges of the system. The system was an open road on which all kinds of 'vehicles' could travel (the "end-to-end" principle Lessig discusses) and at the 'ends' of which all kinds of services (applications) could be placed. 'Open' code allowed innovators to see how programs worked and gave them an opportunity to modify, or add to, the program/code. As long as the original, and the subsequent, code remained 'open,' two things happened: first, a community (wait, stop, think about what that word implies -- which goes beyond Lessig's analysis) of innovators could work on a common project; second, improvements were available to all. As the "physical layer" of the Internet becomes increasingly privatized (especially the radio spectrum), as the "code layer" becomes more closed, and as the "content layer" becomes less accessible, we lose the community (pause once more and ponder this) and the availability. To use the term adopted by Lessig: we lose the commons. Consequently, there will be less innovation and creativity than would be socially beneficial.

A second way in which the Internet is relevant to this problem is that it did provide and could provide opportunities for creativity and innovativeness previously unknown. The world-wide reach of the Internet, digitalization, speed of transfer, the creation of software that will make translation easier (a point that adds to Lessig's analysis), open code and open access -- what possibilities lay before us? To argue that the best way to reach these possibilities is to move 'the market' to the Internet is to ignore the weaknesses and failures of the market. Rather, Lessig would like us to find a balance between market and state that would ensure a healthy public domain, a healthy commons, so that creativity and innovation will not shrivel.

A third way in which the Internet is relevant to this problem is how it is both a part and emblematic of the change that is occurring. The Internet is just one of the 'commons' (in the sense that Lessig uses the word). Libraries, museums, archives (these are extrapolations of Lessig's argument), and an intellectual property policy that provides a balance between protecting the interest of the creator and 'fair use' are commons in this same sense -- or at least (in the case of intellectual property) are the basis for a commons. If we can see how the closing off of the Internet is not a good thing, then we can also see how the closing off of all intellectual commons bodes ill for creativity and innovation. Among these, the biggest battle to fight is what kind of Internet to have -- first, because it is still possible to create an 'open' Internet and second, because of its potential.

The second question ("How serious is the problem?") should by now have a clear answer. Just in case the answer isn't clear: The problem is serious if, as Lessig suggests, a person whistling a tune in public is, from a legal point of view, violating copyright. The problem is serious if movie makers have to worry about the legal ramifications of placing specific objects (a Coke can) or specific locations (a particular courtyard) in a movie picture. The problem is serious if Lessig's warning plays out the way he fears: creativity being further hedged up by relatively few and powerful interests. The problem is serious if we cannot see that in the USA today rational behavior at the individual (firm) level does not necessarily lead to rational behavior at the systemic level. Indeed, as Lessig's argument makes clear, rational behavior at the individual level can lead to sub-optimal results at the systemic level.

What to do? Chapter 14 of Lessig's book sets forth possible policy options. They are grouped in three categories: recommendations pertaining to the physical, code, and content layers. A sampling from each of these categories should give you a flavor for how Lessig wants us to move away from the 'closed access' extreme back toward the middle ground. One option from the first category is to leave "a significant part" of the radio spectrum "in the commons" (241). Lessig recognizes that "spectrum is not all the same" and advises that we "set off significant bands at each spectrum level, to assure that innovation for different uses of the spectrum would be possible" (242). Another option from the first category is to have government surrender much of the spectrum it is using, since government doesn't really need as much as it has. A third option from the first category is that we rethink the use of the spectrum. He notes: "Broadcast television, for example, is an extraordinary spectrum guzzler; in most contexts it would be best moved from the air to the wires" (243). Lessig also recommends that "the FCC should free up greater access to existing unlicensed bands," which would reduce government's need "to worry about other modes of access" or worry about what is done by "owners of other channels" (244). Openness and access can be achieved in another way as well: just as government has invested in highways and opened them up for a variety of users, so also we should think about government building the virtual highway to be used in a similar fashion. The city of Chicago, for example, has created an underground highway by funding 'dark fiber' -- fiber not dedicated to a specific use (245). One last policy option from the first category pertains to the 'last mile' problem. Perhaps that problem can be addressed by connecting "fiber to a wireless broadcasting station that then would beam Internet service to many users in the neighborhood . . . [but we would need to make sure] that bottlenecks not become opportunities for exercising market power" (245).

Policy options found in the second category ("the code layer") include the recommendation that "government should encourage the development of open code" (247). Moving in this direction "risks none of the dangers of strategic behavior that closed code, or controlled networks, do" (247). Another recommendation in this second category is for government to "continue to ensure that no major player in the Internet space is able to architect the Internet space to empower its own strategic behavior" (247). One way that government has attempted to achieve this goal is by requiring unbundling of services. Lessig has a different approach: require Internet service providers to provide those services "consistent with the principle of end-to-end" (248). Related to this, "regulators should begin to evaluate changes to the network in terms of the neutrality of end-to-end. We should begin to think about the trade-offs between control and neutrality explicitly" (249).

In the third category ("the content layer"), a policy option Lessig recommends is to require those who wish to protect their copyright to register their work with the government for a five-year period and allow renewal of that right "fifteen times" (251). Failure to register would place the work in "the public domain" (251). With regard to software, Lessig recommends that we "protect software for a term of five years, renewable once. But that protection would be granted only if the author submitted a copy of the source code to be held in escrow while the work was protected" (253). Upon the expiration of the protection, the software would become part of the public domain. Other policy options presented in the third category pertain to protection of innovation and music, and address such issues as "rebuilding the creative commons" (255), "limits on code" (256), "limits on contract" (257), and patents.

The underlying moral of Lessig's book is this. We do not know what the future holds. It would be better to give ourselves more options/alternatives than to be locked in to particular ways of doing things, or be shut off from a new benefit, or be slowed in technological (or other forms of) progress because those benefitting from the status quo find it hard to let go of the old ways that -- surprise! -- benefit them. At the deepest level, Lessig is concerned not only with the liberty to do, but the liberty to become. This would be an appropriate place to end the review, but I would like to push beyond Lessig's analysis and raise a question related to The Future of Ideas: what kinds of incentives do innovators and creators want and need? Money, fame (glory, honor, praise - serious hubris), recognition (hubris lite), a realization that a new thing has come forth, knowledge or belief that benefits from the creation/invention/discovery will accrue to society, the strengthening of ties with others that comes from bringing to them something new, the joy of accomplishment, the freedom of the creative process, the 'aha' or joy of the creative process ... Would we be better off -- at both the social and individual level -- if in our Policy on Innovation we put less emphasis on the first three incentives and more emphasis on the others? The question ties back to a point made in Lessig's earlier book: individuals are influenced by norms. Laws, markets, and what Lessig calls architecture [3] also influence incentives or motivation. We in the U.S. now live in a society where the getting of money and the control of property is positively normed (as long as it's not done by the government). The ideology of 'the free market' is positively normed. In the area of law and regulation, privatization and propertization are positively normed. Yes, there are normative values that point in other directions. But in this time and place money and market push very hard. The issue can be alternatively framed in this way: what should we teach our children to want and need? That, certainly, will have some impact on their liberty.

1. The "Notes" section of this book, and of his earlier book Code and Other Laws of Cyberspace, are magnificent examples of this. Do not skip the "Notes" section of either book. Interested readers can find two reviews of Code here.

2. I don't believe Lessig intends to limit the meaning of "creativity and innovation" to music, art (painting and sculpture), poetry, literature, and invention (machines, software, etc.). Academic scholarship would also seem to fall within the realm of "creativity and innovation" as well.

3. Lessig's definition of 'architecture' is expanded in his second book -- see the last paragraph of endnote 34 on page 276 for the expanded definition.

Arthur L. Morin:
Arthur L. Morin is an Assistant Professor in the Department of Political Science and Justice Studies at Fort Hays State University in Hays, Kansas. He has taught classes in public administration, American government, and current political issues, and has with another faculty member offered 'distance' education classes in political theory. He has published in both traditional and electronic media.  <amorin@fhsu.edu>

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