Lawrence Lessig Answers Your Questions

Lawrence Lessig Answers Your Questions 326

Posted by timothy on Friday December 21, 2001 @03:15PM from the post-on-your-local-church-door dept.

You asked Stanford Law professor, author and general voice of reason Lawrence Lessig some great questions about rights, law, and the electronic world. Lessig has has gotten back with some fittingly thoughtful answers -- some optimistic, some discomfiting, some biting. Read on to find out what he's got to say.

1) The question of harm
by caduguid

In round two of Valenti vs. Lessig a crucial question arose but due to the to-and-fro of debating was only addressed anecdotally. The question was one Valenti posed to you. To paraphrase it roughly: "Who cares? I would like someone to explain to me what harm is being done to the world by Mickey Mouse's copyright being extended twenty years. How does that harm anyone's ability to be creative or incentive to be creative." In the debate you only had the opportunity to present an anecdotal response. (A teacher whose class film projects couldn't be shared due to copyright infringement fears, I think.) Beyond the anecdote, however, a clear answer would be very helpful. We can all see that the copyright extension bargain was one-sided: copyright holders profited and the public gained nothing. We see the inequity in the action, we sense that the fix was in, and we resent it. But resentment over seeming corruption and the copyright holders' good fortune can only take us so far. A clear conception of direct harm to the public might be far more persuasive than the secondary harm of the copyright holders getting a really sweet deal. I kept hoping during the debate that the opportunity would come for you to address the question more fully, but it never did.

Lawrence Lessig:

Exactly right. This was a great weakness in the debate. It has been a weakness of mine for a long time. In my way of looking at the world, the point is a matter of principle, not pragmatics:

(1) Copyright law silences speech. It you want to set my book to song, you need my permission. If you don't have it, the law will banish your song.

(2) If the government wants to silence speech, it needs a very good reason. And if it doesn't have that reason, it should not silence my speech. Period. I shouldn't have to prove how valuable my speech is before I have the right to speak.

Yet this is just what Jack's question demands: Prove your speech would be better than Disney's. I see it the other way round: Prove the government has a good reason to silence my speech.

Now I do believe the government sometimes does have a good reason. And in particular with copyright, I do believe that the aim of copyright law in general is a sufficiently good reason. Copyright law gives authors an incentive to produce. By offering authors a limited monopoly, it supports their creativity. And subject to lots of lawyerly quibbles, I believe this support on balance produces more speech than it silences. The quid-pro-quo (produce speech and we'll give you a limited monopoly) functions, as the Supreme Court has said, as an "engine of free expression."

But that argument just cannot justify extending the terms of existing copyrights. Extending the term for already produced speech can't produce more speech. Even with Hollywood's help, Congress can't make causation go backwards. No matter what we do, Walt will not produce anything more in the past. Giving Disney the right to control speech about Mickey for another 20 years in exchange for nothing is just to silence speech with no compensating pro-speech benefit. And as there is no pro-speech benefit for this speech-supressing regulation, it should be struck under the First Amendment.

The weakness in this argument, however, is that most people think pragmatically, not in principles. The point for them isn't the ideal; the question for them is how much does it really matter. I've not done a great job in showing that. Others have. Check out, for example, the OpenLaw amicus briefs in the Eldred v. Aschroft case, of law professor Dennis Karjala's website.

But if I had a second (or I guess it's a third) chance, I'd say this to Jack:

First, Jack, this is not about Mickey alone. The retrospective extension of copyright reaches to all works presently under copyright (essentially work published after 1922), not just the favored few. Just think practically about what that means:

In 1930, there were 10,027 books published. Today, 174 of those books are still in print. Yet it would be illegal because of copyright law for Michael Hart of Project Gutenberg to take those 9,853 books not in print and make them available on the Internet for free - at least without tracking down the present owners of those copyrights and getting permission.

How hard is that?

Almost impossible. There is no requirement that copyright holders register. To track down the current holder of a copyright from 1930, therefore, would require first determining whether the author was alive, and if not, then which of his or her relatives were alive, and one once you found a relative, who among the relatives received the copyright at issue, and then whether they'd be willing to let this decaying book be digitized. Bottom line: without an army of lawyers, it is impossible to imagine making these books available because of the regulation of copyright.

What justifies this? If the Sonny Bono Copyright Term Extension Act (passed in 1998, adding 20 years to existing copyrights) had not been passed, then all work through 1943 would be now be in the public domain. Project Gutenberg, Eric Eldred's Eldritch Press, Brewster Kahle's Internet Archive could all make this stuff available to others for free or, as Dover Press does, for money. But as it is, because of the law, this stuff will fall into a black hole of legal regulation. As Brewster Kahle said in his Amicus brief to the Supreme Court in the Eldred case, we are at a point where we could put all human knowledge onto the net. Yet legal regulation stops us. Why?

Second, Jack, what about the new work that gets quashed by this perpetual extension? After we argued the Eldred case in the DC Circuit, a woman approached us with a story about a play she had written based on a work published in 1923. She had worked for almost 10 years writing the play, but the copyright holders would not grant her the right to publish or produce it. In 1998, the copyright was to expire; she had received a commitment to produce the play. But after the Sonny Bono Act, the underlying copyright was now extended for 20 more years. Her words were therefore silenced.

What could possibly justify this? The book published in 1923 was not even in print. Why should the government be in the business of threatening new authors in defense of a work that has all but disappeared? How many other creators will look at this reality and, thinking practically, say: "it's just not worth it. The hassle is too great. The uncertainty too high."

There are thousands of examples like this, and many times that that we could never know: At the debate, I told the story of an elementary school that had made films based in part on other film, and how it couldn't even display its work without fear of the lawyers. I told the story of Alice Randall who wrote "The Wind Done Gone," telling the story of "Gone With The Wind" from the perspective of African slaves. The Mitchell Estate told Alice Randall she couldn't publish her book. It took months of high price lawyering before she was granted the right to publish. How many Alice Randall's would simply say, forget it?

Valenti said the Randall example is insignificant. But what makes it insignificant? An author wants to tell a counter story about one of the most influential books of the last 100 years, and she can't do so without the permission of the estate of the original author. This is America, but you need the permission of a lawyer before you can criticize a favored author?

Again, there are many others who are better at this pragmatism stuff. To me, it just feels insulting. You want to tell the Alice Randalls of the world that they need the permission of a lawyer before they can speak? I want you, Jack, to justify that rule. You tell me I have to justify Alice Randall's right to speak? I want to say in response something we lawyers don't say enough: Bullshit.

2) Is Copyright law a sham?
by bw

It seems increasingly appearent to me that Intellectual Property law generally and Copyright law specifically, has become a corrupt instrument whereby campaign finance coffers are filled by metering out favors to large monied special interests. I am basing this on personal observation after having attempted to participate in the process. For example, I participated in several of the Copyright Office requests for public comment that produced easily 10X as many anti-DMCA comments as pro, only to see the Copyright Office ignore what seemed to me to be the clearly expressed objections of actual people in favor of the large corporations who lobbied for the bill. Worse, no serious attempt (in my view) was made to respond to the issues raised by the public. Congress is even less responsive, in my observation.

If and when I conclude that the deck truly is stacked, such that the political process producing copyright regulation is a sham, should I not also conclude that the best course of action is to engage in covert civil disobediance targeted to deprive the specific entities responsible for the corruption of profits? My question is not whether the DMCA is a corrupt law, but rather what moral obligation one has to obey a law that you earnestly believe symbolizes corrupt government.

After all, if push comes to shove, the anti-circumvention provisions are utterly unenforcable (to the point of being a joke) if they are disregarded in ways that do not attract attention. I'm not someone who has decrypted any DVD's or downloaded many MP3's, but I'm wondering what reason there could possibly be not to start.

LL:

I am not against copyright. I think the copyright our framers gave us, for example (a term of 14 years, renewable once; granted only if you register; for limited kinds of work; and protecting a limited range of rights) was a bit weak, but not much. I would favor a somewhat stronger right than they gave us, but for just about as long.

Yet obviously I believe copyright law has gone too far, at least in the digital age. When the power of creativity has been granted to a much wider range of creators because of a change in technology, the law of yesterday no longer makes sense. It must be changed.

The question is how will it be changed?

Disobedience is one technique. It is risky and increasingly costly. But that's not why I would resist disobedience.

The problem I have with disobedience is that it reenforces the Valenti-way of looking at the world. Copyright hoarders demand increasingly extreme rights so that they may exercise almost perfect control over how their content gets used. In response, the civil disobedience movement sends a message that they should have no control over how their content gets used at all. Between perfect control and no control, most would choose perfect control. And hence, we lose.

Disobedience makes sense when you are saying there should be no regulation of the kind you attack. When Martin Luther King led marches in Selma and Birmingham, he was not calling for a limited, or balanced form of segregation. He was calling for no segregation at all.

But we should not be calling for the repeal of all copyright. We should be calling for a balanced and limited form of copyright - much like the right of our framers - that gives artists the right to earn a living, without giving copyright hoarders the power to veto innovation.

We could make progress in demanding that right if those who got it did something. If, for example, slashdot readers weren't such political slugs, something might happen. If more of you did something about this, whether spamming your Congressman, or giving money to those who resist this regulation (like the EFF), then we could resist this extremism.

I am not optimistic, however. Those who get it (e.g., you) are pathetically apolitical. You're proud of your apathy. You're disgusted with people who try to persuade politicians. So am I. But while you do nothing, the future of creativity and innovation is sold in DC - typically to the highest, and most disgusting bidder.

3) The Judicial Branch
by lblack

I just wrote out way too long of a question, so I'm deleting and starting over.

Members of the judiciary are largely unqualified to comment or judge upon issues of a technical nature, simply because their careers do not incorporate a great deal of technical knowledge, and also because they have not sought it (and I don't blame them, probably didn't have time) on their own.

Now, they *are* qualified to comment on matters of criminality, which are supported by a huge amount of precedent, legislation, etc that has been repeatedly modified, challenged, or simply let stand.

However, there are new "crimes" coming into being, called "cybercrimes" by the buzzwordish. Our judges, lacking technical skills or a real awareness of digital culture, are passing judgement in cases that have either very loose or no precedent to be found, or that are the result of new and innovative legislature (see: DMCA).

My concern is that the judges who are making the decisions are the least qualified to do so -- that we won't have a lot of judges with a high awareness of the intricacies involved for several years. However, the judges presently seating are essentially creating a body of law to govern what they do not understand.

My question: How large of a threat will these precedents pose to the continuation or reclamation of freedoms? Will we be able to take back the ground we've alrady lost, or will the intricacies of the legal system vis-a-vis tort & precendent, ensure that we cannot?

LL:

There was a time when I thought that lawyers wouldn't do too much damage. The first Supreme Court case about cyberspace, Reno v. ACLU, striking down the Communications Decency Act of 1996, made it sound as if the constitution required that lawyers be careful before they muck up this free speech haven. Reno put a strong burden on the state to demonstrate that the state's regulation won't do any harm. That made the future sound hopeful.

All that has changed now. As the courts have shifted from porn to copyright, concern for balance, and limits have disappeared. Courts make illegal all sorts of technology because of its "threat" to copyright, without any concern about whether such regulation will threaten cyberspace and free speech generally.

This is, in part, because courts don't understand the technology. But I don't think it's because courts don't know how to code. I think the problem is that courts don't see the connection between certain kinds of technology and legal values. And this is because we've not done a good job in demonstrating the values built into the original architecture of cyberspace: That the Internet embraced a set of values of freedom; that the end-to-end design constitutionalized the idea that the network owner should not be allowed to veto content or applications; that those values produced a world of innovation that otherwise would not have existed. If courts could be made to see this, then we could connect this struggle to ideals they understand.

Sometimes when I read Slashdot debates, I wonder whether you guys get this connection either. The passion that is expended to defend the right to encrypt is wonderful and important. But just as important to the future of freedom is to assure that end-to-end values don't get corrupted by cable companies or network owners. Just as important to the future of freedom is to assure that essential parts of the network not become corrupted by copyright hoarders. And just as important to the future of freedom is to assure that spectrum remain free from the regulation and control of the state.

Yet these debates about freedom get bogged down on these pages. And this leads me to the greatest pessimism: If you guys don't get the importance of neutral and open platforms to innovation and creativity; if you get bogged down in 20th century debates about libertarianism and property rights; if you can't see how the .commons was critical to the .com revolution, then what do expect from judges?

You guys (not Howard Roark) built an architecture of value. Until you can begin to talk about those values, and translate them for others, courts and policy makers generally will never get it.

4) Leverage the knowledge of technical community
by 2Bits
A lot of obscure laws have been passed, and the majority of the population are not even aware of their existence. However, the technical community is watching the legislation quite closely. And we seem to understand the potential impact and risk on freedom and privacy. But the technical community has a very small influence on politics, and seems almost clueless in "playing political games."

How can we leverage the knowledge of the community to help educate politicians and the general population in terms of technologies, and the impact of the proposed bills? Briefly, how can we help better, not just sending letters to congress people or senators?

LL:

This is a great question. We need translators. We need to translate the values of the network into terms that nontechnical people get. And we need to watch for changes in the architecture or mix of technologies layered into the network, and raise warnings about how those changes will alter the environment for innovation and creativity. As one of my heroes in the law, James Boyle, puts it, we need an environmentalism for the Internet. You are the environmental experts. You can credibly show the world how changes in the ecology of the Internet will destroy the environment for creativity, innovation, and freedom that it produced.

Will you do that? Again, I am skeptical. Rather than trying to focus this debate, or agree on ways to make others understand, you guys immediately turn these questions into irrelevant bickerings. When someone reported that I had written a book described as the "Silent Spring" of the Internet, that opened up a thread about whether in fact DDT had harmed the environment. Someday, when freedom is gone, and all we've got is the right to whisper our thoughts to those closest to us, our children will look back and ask, why did we think we had the luxury to quibble?

But if you don't want to become translators, if you don't want to write environmental impact statements, if you don't want to try to convince the North in California that if it gets taken over by the South, freedom and innovation ends, then you could do as Torvalds has recommended: give money to those who are fighting the battle, in particular, EFF. I'm on the board of EFF, so blissfully biased about to whom. But whether EFF or someone else, follow Torvalds and the other christ-figures in history: Tithe. Take the cost of Internet access (whether you pay it or not) for one year; send 10% to an organization fighting for your freedom.

5) file sharing and copyright law
by stevenj

What do you think of OpenNap, Gnutella, Freenet, Morphius, and similar file-sharing systems? Do you think it is legal for a person to distribute unauthorized copies of a copyrighted recording or video that way, especially if no commercial entity is involved (e.g. excluding Napster or Morphius)? Should it be legal? (Should it matter how many copies you distribute, or to whom?)

If you think it should not be legal, what remedies should the law consider, since these systems can have significant non-infringing uses as well?

LL:

I support these technologies. More importantly, I support the right of innovators to develop these technologies. But I don't support copyright violations using these technologies.

You'd think this would be an easy distinction to understand: We live in a country where 10 children are killed by hand guns every day. But Smith and Wesson doesn't worry that the FBI will come arrest them because someone used their technology to commit a crime. The law targets illegal uses of technologies, not the technologies - at least where there is a legitimate and legal use of that technology. Yet because of our extremism when it comes to copyright law, we ban technologies that threaten copyright interests whether or not they have legitimate, independent uses.

6) Microsoft settlements?
by Lumpish Scholar

What is your take on the proposed settlements in the antitrust and civil Microsoft cases? To most Slashdotters, the former seems like a slap on the wrist, the latter like a a punishment turned into a reward (increasing dominance of the U.S. education market). Is there something we're missing?

LL:

The short answer is this: the settlement is fatally flawed. There is no effective enforcement mechanism to assure that Microsoft lives up to the terms of the decree. The "technical committee" does not have the power to interpret the decree. The only entity that can interpret the decree is a federal court. We've seen how well that works: The last decree (signed in 1994) was the subject of the case that began in 1997. It took the courts 8 months to work out the meaning of 20 words.

The decree would be close-to-fixed if it had an effective special master who could monitor and enforce the decree effectively (and no, I'm not interested.) It still wouldn't be a perfect decree - I like the nine states' proposed alternative better - but at least it would have a chance.

But though I've been attacked by Microsoft as strongly as anyone, and though I completely agree with the Court of Appeals that Microsoft violated the antitrust laws, I do believe something that will not endear me to many of you: As I said in my testimony, I don't believe Microsoft is the greatest threat to the Internet. And indeed (and more controversially), there's at least one understanding of how the .NET strategy gets implemented that would reenforce the best of the Internet against the threats posed by the Time Warners of the world and cable interests. On at least one understanding of .NET, .NET would reenforce an end-to-end network. It would resist "intelligence" within the network. And except for the open source and free software movements, it is about the only strategy out there that could produce real freedom.

My claim is not that Microsoft will adopt that strategy on its own. I am not arguing we should trust the company. But I do think that an effective remedy could push Microsoft in the direction of something good, and if it did, the company could become an ally, not an enemy.

I know there are many who resist this view. Many believe MSFT is the devil. I'm not one of those people. And my concern is that if we obsess about old wars, we won't understand the nature of the new.

7) Doctrine of First Sale Dead?
by burris

Back near the turn of the last century, book publishers printed contracts on their books, limiting the ability of the customer to resell or lend his purchases. This practice was halted by the U.S. Supreme court and the consumers right to do what they wish with legitimately purchased copies (with certain limited exceptions) was eventually codified in the US code as part of the '76 Copyright Act.

Given that software is a work of authorship protected by Copyright law, how is it that software publishers get away with these old tricks of printing restrictive contracts on their works, claiming assent simply by using the software, denying people their rights under Copyright law?

LL:

They get away with it because their lobbyists have convinced Congress to change the law. So, for example, the first sale doctrine has been repealed for some content. And it is not being supported with other content.

The history is important, however, to remind people about the balance that copyright law has typically tried to draw. We have never until now understood the rights of copyright to be the right of the author (or publisher) to exercise perfect control over copyrighted material. The framers of our constitution gave copyright holders a tiny set of rights; this is not because the framers we communists. We need, as a culture, to remember that copyright is a form of state regulation. And we need, as political culture, to become, with respect to this regulation, a bit more Republican: Where is the regulatory impact statement that shows that this form of regulation does any good?

8) IP Laws of the Future
by Catiline

Rather than ask about current copyright/patent laws, or pending ones, I would like to know what you think the ideal Intellectual Property laws are (assume you could rewrite them as you wish). Also, what sort of international agreements would have to be passed alongside this?

LL:

In my book I argue for a number of changes. They include a much more restrictive term - basically 5 year renewable terms, up to a maximum of 75 years. For software, the term would be even shorter, and conditioned upon the software author depositing his or her source code with the copyright office, to be open sourced upon the expiration of the copyright.

More importantly, I think we need to restrict the scope of "derivative rights" more than we do today. Copyright owners deserve to be paid for the use of their work; they should not be allowed to veto follow on work that builds on theirs.

Finally, during a time of technological transition, we need a strong set of compulsory rights so that new content producers and distributors can get access to material to enable these new businesses to take off. Compulsory rights require that the author of the original work get paid, but the rate is either set by the law, or set by a panel to be relatively low. This will give artists more than they would have had, had there been no Internet. But it will assure that innovators can build out the future of the Internet without the control of dinosaur industries.

9) Patents, Copyright and the law community
by gdyas

Dr. Lessig,

Looking from the outside in on the legal community's response or lack thereof to the constitutionality and legal basis of recent court rulings (Napster, Eric Corley), the DMCA/SSCA, etc, I see very few lawyers taking a stand against this -- there's mostly a massive shrug. There's the ACLU, the EFF of which you're a part, and Jessica Litman, and that's all I see trying to do something about the co-opting of copyright and patent lawmaking by corporations through appeals based on the interest of business, lobbyists' dealmaking, and outright graft. By and large however there seems to be little interest even amongst lawyers and congressmen about the arcana of copyright and patent law, and thus it's left to such companies and libraries because they're the only ones who both have power and care about it. Has trying to fight this caused conflict in your professional work? Is it lonely being a "vox clamantis in deserto"? What's your game plan for beating these guys back, or do you have one? There's a certain sadness and resignation in both your and Litman's writing that's very disencouraging that would lead me to think that even our flag-bearers feel there's little hope at this point.

LL:

There are more of us than you think, but certainly not enough. Again, check out the OpenLaw page, and you'll see over 50 of the most active resisters to this expansion of copyright working together to overturn the Sonny Bono Act. These scholars and lawyer represent a critically important resistance.

That said, we still need more help. I produce lawyers for a living; I watch as many try to find jobs to do good, but find the only available work is within the system. People who understand the importance of freedom and see the importance of protecting the future of freedom on the net need to support institutions that fight for that freedom. Pam Samuelson of Berkeley, and her husband, Bob Glushko, have given an extraordinary amount of money to support clinics at law schools around the country. At Stanford, we also have a clinic that defends hackers (soon to be known officially as "terrorists"). But again, I think EFF has been the most important player in this area.

10) Will the extension of copyright continue?
by Artifice_Eternity

Do you think that the gradual increases in the length of time that works can remain copyrighted (most recently the "Mickey Mouse Protection Act" of the 1990s) will continue every time that the media companies feel that they are about to lose control of some of their "intellectual property"?

Or do you think that the public interest will reassert itself and hold or even turn back some of these copyright extensions?

When a work's copyright is extended, one person (the author or the corporation that owns it) benefits. But when its copyright expires, everyone benefits by being able to copy, modify, expand on and extend it. Can we convince lawmakers with this kind of social and economic argument?

LL:

Exactly right. When Congress passed the Sonny Bono Copyright Term Extension Act (CTEA), which we've renamed the "Mickey Mouse Protection Act," we filed a law suit on behalf of Eric Eldred and others. Eldred had threatened civil disobedience. He runs a web based archive of public domain works, and promised to publish works in violation of the CTEA. We convinced him that jail was ugly and that courts may do the work better. We've been litigating the case now since 1998, and have convinced at least two federal judges that the law is unconstitutional. Tight this moment I should be writing a reply to the government's argument against the Supreme Court reviewing the case. That reply is due in a week.

If we get to the Supreme Court, I am certain that we will win. This is not a left/right issue. The conservatives on the Court will look at the framers' constitution - which requires that copyrights be granted for "limited times" - and see that the current practice of Congress, repeatedly extending the term of existing copyrights (11 times in the last 40 years) makes a mockery of the framers' plan. And the liberals will look at the effect of these never ending copyrights on free speech, and conclude that Congress is not justified in this regulation of speech. The Supreme Court doesn't give a hoot about Hollywood; they will follow the law.

It is not enough, however, to win in the Supreme Court. Ordinary people need to rediscover the importance of the public domain to creativity. The Internet could teach this - Brewster's Internet Archive, for example, is a great demonstration of the value of the public domain. But it will take real political action by real people (i.e., not lawyers) to get Congress to recognize what our framers understood.

11) Cyberspace Amendment
by kzinti

Many years ago, in the early days of the WWW, Laurence Tribe proposed a "Cyberspace Amendment" to the US Constitution that would explicitly extend all the rights and freedoms of the Constitution to all forms of speech, regardless of the medium. The idea was brought to many of us geeks in a Dr. Dobbs article by Michael Swaine. I know what many of my fellow Slashdotters opinions probably are, but I'd like to have yours: how have our Constitutional protections held up on the Internet, in e-mail, and in WWW publishing? Do we still need a Cyberspace amendment -- or do we perhaps need it now more than ever?

LL:

Professor Tribe's article was typically Tribe: Way ahead of its time, and right. But the sad fact is that our liberties have not been eroded because the protections in cyberspace are weak. Our liberties are weak because courts have eroded constitutional protections generally.

The more I'm in this battle, the less I believe that constitutional law on its own can solve the problem. If Americans can't see the value of freedom without the help of lawyers, then we don't deserve freedom. We should be working to help Americans recognize freedom again.

12) Activism by coding
by melquiades

It seems like a lot of judges who face abstract technology questions -- code as speech, DMCA, etc. -- just don't get it. And can we really blame them? Technology is complicated; can we expect every judge to be an uberhacker?

Perhaps it would be helpful to have some bright programmers set up some concrete examples for judges to consider, which clarify the problems we all see, and help judges refine their intuitions about code and digital information.

For example, to further the "code is protected speech" cause, we could create a full-fledged programming language which reads as plain English, then use it to implement a copy protection circumvention program (DeCSS or the like). This raises all sort of interesting questions: it's English and code; is it protected under the first amendment? Presumably it was before it could be run as a program, so does my inventing a programming language change the status of existing speech? If it's protected as only source code, is an interpreter for that language illegal? Is bundling the English script with the interpreter illegal? And so forth ...

... but that's a very thorny example. Are there examples of this kind that we programmers should be producing -- software that makes these theoretical arguments more concrete? Is there anything in this spirit that won't just confuse and/or piss off a judge? What examples do our causes need? We're ready to implement them!

LL:

Again a great question. The answer is more communication between lawyers and technologists. There is ignorance among lawyers and judges about technology no doubt. But there is also ignorance among technologists about the law.

The "code is speech" debate is a perfect example. Obviously, this is an important victory to have -- and indeed, the one good thing that came out of the 2600 appeal was a clear affirmation by the Second Circuit that "code is speech." But among constitutional lawyers, that "code is speech" is not the hard question. The hard question comes next: even if it is speech, how much power does the government have to regulate it. For just because "code is speech," it doesn't follow, under standard First Amendment law, that the government can't regulate code. Think again about copyright law. Obviously, what copyright law regulates is speech. But even though speech, under some circumstances the state can regulate it.

I think the place where technologists could do the most good is by showing the rest of the world something much more fundamental about the network. Not just how code is speech, but also:

(1) how the architecture of the Internet built a set of values,

(2) how those values are fundamentally linked to the most important freedoms in our tradition, and

(3) how changes in that architecture of the net could undermine those values.

Find ways to demonstrate how the architecture built a commons, and how that commons induced innovation: That's the stuff that lawyers, and politicians, don't get.

13) International Freedom
by bfree

We seem to be living in "Interesting Times". The events of 911 have given law-makers the impetus to have acts passed which would have been at the very least debated for a lot longer pre 911. Up until now the Internet has been an incredibly open network with minimalist intervention and legislation from individual countries governments (a few notable exceptions). It seems as if we are going to enter a new legal phase for the internet where legislators in many countries will try to enact and apply laws to take control of this wild beast. Each countries individual efforts will hamper their own citizens without overly effecting the rest of the net.

My question is how much of the above do you disagree with and why? And what body (UN, w3.org, wipo, coporation of ISPs, Microsoft) do you forsee holding the international legal legislatory responsibility for the net at large in 1/5/10/25/50 years time?

LL:

I don't disagree with any part of your description. That was the argument I tried to make in my first book - that the original freedom of the Internet could be changed by relatively small changes in the architecture, and we should expect governments to work hard to effect those changes. I made a bunch of dark predictions in that book. History has proven I was not pessimistic enough.

I don't know what body can resist these changes. I would have hoped the IETF would play a bigger role. And W3 too should see what's at stake. But the fact is that the strongest advocates for freedom are overwhelmed by those who have the most to lose from freedom. The key to our success would be if a strong commercial actor became deeply invested in freedom. Except for its patents, I would have said IBM was that commercial actor. But we'll need more than Big Blue.

14) DMCA
by Amazing Quantum Man

What, in your opinion, are the chances of getting the DMCA declared unconstitutional?

Given the recent court defeats in both the Felten and 2600 cases, do we even have a chance?

LL:

The DMCA as a whole won't be struck down - ever. But I continue to believe that at least the parts that disable the use and deployment of technologies to protect traditional fair use will eventually fall. At least they will fall if litigation about them could continue. But notice again: the only group out there supporting this litigation (Felten and 2600) is EFF, and EFF's resources are, surprise surprise, limited.

Skeptical on both, though as I've said, I do think there is a way that .NET could get implemented that would reenforce freedom on the Internet. That's not to say Microsoft would on its own follow that path. But it is important to see that if it did follow that path, its architecture could reenforce freedom.

The same could be said about the Liberty Alliance. Nice title, but Sun has never quite resolved itself to the idea of open and free networks, so I'm not convinced Liberty is what it calls itself. I do think we as a community need to develop a much better authentication architecture - one that is not controlled by any one single, or group of companies, but instead a platform upon which authentication services could be built. I hear whispers from Red Hat that they would be interested in such a future. I hope that's true, but its too soon to tell.

The dangers in both .NET and Liberty could be better resisted if we would only develop a consistent and clear message about the importance of neutral platforms to innovation and freedom. When we built the highway system, we didn't say to GM: "if you build the highways for us, you can build them so that GM trucks run better than Ford trucks." When we needed a passport system, we didn't tell Chase Manhattan bank that they could develop the passport system in exchange for a piece of every transaction. In both cases, there was a recognition of the importance of neutral, commons-like, infrastructures upon which others could build neutrally.

We need to relearn this lesson - in general, and in the context of the Internet. You guys could help teach that lesson. Indeed, only technologists have the credibility to speak reason to this idiot power. But that will require something more than a life of quibbling on Slashdot. And so far, you've not shown you're up to very much more.

15) .NET-enabled futures?
by Nikau

What is your opinion on things like Microsoft's .NET or the Liberty Alliance (I believe that's what it's called - the one being developed by AOL and other companies to counter .NET)? Do you see these as a potential problem in terms of a free online world?

LL: p>Skeptical on both, though as I've said, I do think there is a way that .NET could get implemented that would reenforce freedom on the Internet. That's not to say Microsoft would on its own follow that path. But it is important to see that if it did follow that path, its architecture could reenforce freedom.

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