|FROM ||Matthew Hirsch
|SUBJECT ||Subject: [hangout] review of lessing book
I just saw this on line others may want to read it.
Lessig: The Future of Ideas
by Richard Koman
"We move through this moment of architecture of innovation to, once
again, embrace an architecture of control - without noticing,
without resistance, without so much as a question. Those threatened
by this technology of freedom have learned how to turn the
technology off. The switch is now being thrown. We are doing
nothing about it."
--Lawrence Lessig, The Future of Ideas
I have a tape somewhere of an interview with Jerry Garcia in which he
talks about taking LSD in those government-sponsored tests. He says:
"I thought it was really unfortunate that they made LSD illegal, but
there was like a year there where they didn't know and it wasn't
illegal, and it was, like, wow, that was a really good year."
That's a sentiment that pretty much covers the Napster phenomenon. For
a while there, there was a whole lot of music available on the Net -
for free. What you did with it was entirely up to you. Some people
used it as a sort of radio request line ("Hmm, I feel like hearing
some Van Morrison"), some used it to seek out new music ("I've been
hearing about Jewel; let's hear her stuff. Cool, I think I'll get the
CD"), and some used it as a free CD-printing factory ("A fast
connection and a CD burner - I'll never spend another buck on music
again.") Whatever you wanted was pretty much there, no matter how
obscure. And as the Recording Industry Association of America started
gearing up their attacks on Napster (and MP3.com), it became clear
that the jig might be coming to an end. The realization dawned: "wow,
that was a really good year."
Soon, the inevitable happened. "Shut down this monster," said federal
judge Marilyn Hall Patel. "But the genie is out of the bottle," we
said. A hundred other sources will sprout up; with the record
companies releasing music in digital form, and a good compression
format like MP3, there isn't any way it won't get out there. The
labels are dinosaurs, sure to be eclipsed by the fast-moving
innovation of the Internet.
We must have been on acid. Now, at the end of a really bad year (in so
many ways), it seems clear the genie can and is being stuffed back in
the bottle. Napster is offline; the RIAA and Motion Picture
Association of America have moved on to sue MusicCity, Grokster, and
others; and the Digital Millennium Copyright Act is standing up in
This battle, which now seems to be over, is about much more than
music, says Lawrence Lessig, Stanford law professor and author of Code
and Other Laws of Cyberspace, in his new book, The Future of Ideas.
Here was a moment, says Lessig, when the power of networks was just
coalescing into something really profound. With millions of
individuals (as well as businesses and universities) connected to the
Internet, powerful PCs, fast bandwidth, and peer-to-peer software that
let people communicate and share with each other, the times were ripe
for a real breakthrough in our ability to communicate, collaborate,
and participate, not just in fandom, but in making art, creating
software, guiding government, forming new social organizations, and so
Time of Retribution
Among Lessig's most pessimistic predictions are that the people
who created systems of shared communication, and those that would
benefit most from it, are doing little to defend what they've built.
What can be done in the face of Hollywood's powerful lobby?
Against all that newness, says Lessig, what we are seeing in the case
of Napster, and countless other cases, is nothing less than the
retribution of the old (at one point, he compares these forces to the
Soviets) against the new. The Future of Ideas is the story of that
retribution, and a plea for action. "Those who would prosper under the
new regime have not risen to defend it against the old; whether they
will is the question this book asks. The answer so far is clear: They
will not," he writes.
Early in the book, Lessig considers Apple's advertising slogan "Rip,
mix, burn. After all, it's your music." (I don't think they're using
that one anymore.) He makes this point:
To the lawyers who prosecute the laws of copyright, the very idea
that the music on "your" CD is "your music" is absurd [T]his music
is not yours. You have no "right" to rip it, or to mix it, or
especially to burn it. You may have, the lawyers will insist,
permission to do these things. But don't confuse Hollywood's grace
with your rights. These parts of our culture, these lawyers will
tell you, are the property of the few. The law of copyright makes
them so, even though the law of copyright was never meant to create
any such power.
Earlier this month, the RealOne Music service went online, offering
hundreds of thousands of songs from AOL Time Warner's catalog. For $10
a month, you get 100 downloads and 100 streams per month. There is,
however, no copying of downloads to portable MP3 players, thanks to
digital rights management software.
Here is the old guard's one-two punch. Use the courts to remove
competition coming from the users themselves. Use code to protect
against copying. Law plus code. But there is a backup punch, the
Digital Millennium Copyright Act, and it is a hammer. The DMCA's
anti-circumvention clause makes it a crime to try to crack digital
rights management software. Law plus code plus law. Thus the industry
is making certain rules:
* You may not trade music among yourselves.
* You may download music from us with the restrictions we set in
* We will enforce those restrictions with code.
* It is a crime to break that code.
In Lessig's view, this is a massive expansion of copyright protection,
a change that shifts the entire purpose of copyright from supporting
creativity to granting total and absolute property rights not to
artists but to middlemen.
Offline, copyright has been expanding at a steady clip. The length of
copyright has lengthened from 14 years to the life of the author plus
70 years. But online, intellectual property owners have been expanding
the scope of the law in lots of ways, eroding fair use and prosecuting
what were formerly considered non-infringing uses.
If you're a fan of the Simpsons and you hang up pictures of Bart and
Lisa in your room, that's effectively a non-infringing use of those
images. No one knows or cares what pictures you hang in your room. But
if you put Bart on your home page - even though, as Lessig argues,
fewer than 100 people may ever see that page - you may well get a
letter from Fox's lawyers, because now you're a publisher, now you're
stealing copyright images. And while no one will go pulling posters
down from teenagers' closet doors, Fox can easily deploy bots to look
for Simpson images and alert the lawyers; use that was formerly no
one's business is now a matter for the lawyers. "As activity that
would be permitted in real space moves to cyberspace, control over
that activity has increased."
"The use that you thought was non-infringing becomes infringing when
code enables them to check."
If you can copy a CD onto cassette, why can't you make a digital copy
of it? (It is, after all, digital already.) And if you can make a
digital copy on your computer, why can't you put your copies on a
server, where you can get to it whenever you want? That was MP3.com's
thinking when they created MyMP3.com. They copied thousands of CDs and
created a service where you could listen to your own CDs online, once
you proved you actually owned the CD by inserting it in your PC to
register it. Copying thousands of CDs for a Web-based service? Bad
idea. Building a business built on someone else's intellectual
property? Really bad idea. The RIAA sued, received a $110 million
judgment, and MP3.com is now owned by Vivendi Universal.
So you have no Napster and you have no MyMP3.com, and you quietly copy
your own CDs to your hard drive. No one can complain about that, can
they? But: "Unauthorized duplication is a violation of applicable
laws," as it says on the packaging. If, say, the next version of
Windows checked for unauthorized copies of CDs on your hard drive,
what would you say when they hauled you into court? Fair use? Remember
what the Hollywood lawyers say, according to Lessig: Buying a CD gives
you a license to do certain things with it. Those rights may or may
not include ripping it to your hard disk. The use that you thought was
non-infringing becomes infringing when code enables them to check,
just like the bots that look for pictures of Bart and Lisa on home
Fair Use and the DMCA
The DMCA's anti-circumvention provisions make it a crime to distribute
code that "circumvents" (cracks) any encryption technology designed to
protect copyright material. Most famously, the MPAA used this
provision to block distribution of DeCSS, software that cracks the DVD
scrambling software. You can't play a DVD unless your machine knows
how to decode the scrambled content. Since Linux machines aren't
licensed to play DVDs, Linux users couldn't play DVDs. And Linux users
hate it when they can't do something. The result was DeCSS, a program
that let you play DVDs on machines that weren't licensed (that is,
whose manufacturers hadn't paid MPAA a fee.) According to Lessig, CSS
didn't prevent copying of discs, so DeCSS didn't result in increased
piracy, just in the ability of Linux users to play DVDs.
So the question is raised: since copyright law allows for fair use,
then isn't cracking the code that prevents the fair use - the ability
to play a legally purchased DVD on a computer of one's choosing -
protected? Shouldn't the courts allow distribution of this code under
the fair use doctrine? Lessig's position is that "if copyright law
must protect fair use Then laws protecting code protecting copyright
material should also leave room for fair use."
The courts are not impressed with this line of reasoning, however; in
the original case, the court ruled that DMCA is law that regulates
code, not copyright. That decision was upheld on appeal, the justices
firmly rejecting arguments that DeCSS should be allowed on fair use or
First Amendment grounds. The case could go to the Supreme Court. It
should be clear by this point, however, that the DMCA stands, and that
unlicensed use of copyright material, as well as attempts to
circumvent encryption schemes on DVDs or any other media, are illegal
and will be vigorously prosecuted. No one should expect the high court
to overturn DMCA.
Perhaps a purer test of the DMCA's anticircumvention provisions is the
federal case against Dmitri Sklyarov, the Russian programmer who wrote
the "Advanced Ebook Processor," a program that allows users to disable
the copy-protection software on Adobe's Ebook Reader. This is a direct
violation of the non-circumvention clause of the law. After arresting
Sklyarov and then requiring him to stay in northern California, the
feds have dropped the charges against the programmer in exchange for
his testimony against his employer, Moscow-based Elcomsoft. As a
corporation, Elcomsoft faces only penalties, not jail time for its
principals. The court case is expected to be tried in early summer of
What is Lost?
Lessig's dark vision is that the "commons of innovation" is coming to
an end, replaced with a brave new world that looks suspiciously like
the old one, with copyright protections expanded to the point of
absurdity, fair use effectively done away with, and patents blocking
the development of new ideas.
Napster is dead. You can't watch DVDs on a Linux machine. You can't
listen to your own CDs from a server. You can pay the record labels to
download music from their services, but you can't listen to the
product you bought on a certain device capable of playing it. Your
cable company can dictate how you can use the Internet, and it can
limit uses like streaming video that compete with its own monopoly
business. To all of the sad stories Lessig tells in The Future of
Ideas, add the Bush Administration's battering down of privacy and
civil liberties on the Internet and in the real world in the campaign
against terrorism at home.
The "really good years" of the counterculture ended not with a whimper
but with the bang of National Guard rifles at Kent State. While it
seems absurd to compare the death of Napster to the death of the Ohio
protesters, there is a sense that a clampdown has occurred. In the
1970s, it was the government that clamped down. In the 2000s (what do
we call this decade?) it's Hollywood. That seems fitting.
But even though the counterculture was buried and the radicals got
jobs on Madison Avenue, the impact of the 1960s continues to affect
American art, culture, and politics 40 years later. Similarly, the
great insights of the early Net, as well as the creative breakthroughs
of the Napster era, will continue to affect the Internet and world
culture for years to come. These ideas will continue to shake the
world, but more quietly now.
The revolution will not be televised but it is being streamed in your
choice of 56K or 300K streams, in either Real or Microsoft formats.
Just read the user license agreement and click "I Agree."
Richard Koman is a freelance writer and the editor of several O'Reilly
New Yorker Linux Users Scene
Fair Use -
because it's either fair use or useless....