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Life, Liberty, and ... the Pursuit of Copyright?
Round One: Opening Remarks

Lawrence Lessig

I wish there were a serious (or even clever) way that I could disagree with the extraordinary cover story that Charles Mann has written. But there isn't. In its essence, his analysis is exactly right. As Mann argues, the extremes of this debate -- that copyright is dead, and that perfect control is needed -- have to be wrong. And his pragmatic test for a viable doctrine of copyright -- whether it produces a diversity of substantial writing -- seems to me just right. If I had to disagree, my quibble would be with his picture of the future, and the troubles that future will bring.

John Perry Barlow writes:
"Most of the folks who presently make their livings by their wits do so not under the protection of legally instantiated methods of 'owning' their own intelligence or expertise but rather by defining value on the basis of continued and deepening interaction with an audience or client base. This applies equally to performing musicians, doctors, architects, consultants, and, indeed, copyright lawyers."

See the rest of Barlow's opening remarks.

Here's what I mean. There are some who say that life on the Net is unregulated, that it isn't and can't be regulated: that one never knows where one is; that too many governments would compete over its control; that laws would therefore produce a distracting cacophony rather than any direction.

I think that this view is wrong. Life on the Net is regulated; its regulation, however, is not primarily through law. Its primary regulation is the code of cyberspace itself -- the software and hardware that together set the terms, or the rules, or the law, of how behavior will be. It is this code that now lets people copy whatever they want, and this code that gives rise to the copyright panic that Charles Mann writes about.

What Do You Think?
Join the debate in the "Life, Liberty . . . Copyright?" forum of Post & Riposte. We'll highlight selected readers' remarks as the Roundtable progresses.

This code could be different. Indeed, it is becoming quite different. As Mann rightly describes, researchers such as Mark Stefik of Xerox PARC (appropriately enough) are developing systems that will, through software, give copyright holders perfect control over their stuff. Far more efficiently and far more completely than law, this code will give copyright holders the power to control access and use, the power to disable fair uses, and the ability to keep control of their material for much longer than the statutory life.

This all might sound like harmless self-help. But it is far more than that. The trouble with code is the same trouble that Jamie Boyle speaks of when he says, in Mann's piece, "Here we are privatizing a large chunk of the word of fact and The New York Times hasn't even written a story about it." For code is privatized law. Following Boyle (who could do anything else?), we could say, "Here we are privatizing a large chunk of the public law of copyright, and The New York Times hasn't even written a story about it."

Mark Stefik writes:
"Understanding what's ahead in terms of copyright and digital publishing is more than a debate between those who believe that ideas want to be free and those who believe that ideas want to be paid for.... The shaping of this element of our social and economic lives is now open to both choices and experimentation."

See the rest of Stefik's opening remarks.

This privatized copyright law will have none of the balance that the public law of copyright has. Instead, in the competition that will emerge to protect what we now call intellectual property, the codewriters will develop ever more secure ways for giving "owners" perfect control. Just as we would expect few to buy a lock to their house that permitted "fair use" by neighbors, we should expect few to buy a lock for their intellectual property that would permit "fair use" by others.

But fair use, or public use, or imperfect control, is at the heart of the Constitution's protection for intellectual property. The law protects only a conditional right. The Constitution gives Congress the power to protect intellectual property, but that power is limited. It does not give Congress the power to protect intellectual property the way Congress (or the states) might protect cars or boats. The protection that the law allows is just enough to create an incentive to produce, and is not so much as to produce a choke on future production.

Charles C. Mann writes:
"If the trends continue -- which Barlow argues will be inevitable -- copyright will become ever less useful. At what point would publishers be justified in resorting to the private law whose effects worry you? Put more loftily, if copyright fails its constitutional duty 'to promote the Progress of Science and useful Arts,' would that justify measures that otherwise would be rejected because they might threaten fair use?"

See the rest of Mann's response.

The protection of law, therefore, is partial. And if so, then why not also the power of code? If copyright is limited in the protections that it gives, why shouldn't code be limited as well -- limited, that is, by law? If there is a reason not to let Congress protect copyright as strongly or as permanently as it protects cars and boats, then why should code be permitted a protection that is even greater?

It shouldn't. And if we get it right, in the future it won't. These systems of private law should be limited in the same way public law is limited. Like public law, the power of code should be balanced to guarantee the same rights of public access as copyright now does -- indeed, maybe even a bit more.

This all may suggest a very different future for the law of copyright. We may well see the day when our students are taught not of "copyright" but of "copyduty" -- the legal duty of copyright holders to assure public access. That, I believe, would be progress.

What do you think?

Join the debate in the "Life, Liberty . . . Copyright?" forum of Post & Riposte. We'll highlight selected readers' remarks as the Roundtable progresses.

Roundtable Overview

Introduction by Charles C. Mann

Round One: Opening Remarks -- posted on September 10, 1998

Round Two: Responses -- posted on September 17, 1998

Round Three: Concluding Remarks -- posted on September 29, 1998

Lawrence Lessig is the Berkman Professor of Law at Harvard University. He teaches and writes in the areas of constitutional law, contracts, and the law of cyberspace, and is presently completing a book, Code, and Other Laws of Cyberspace.

Copyright © 1998 by The Atlantic Monthly Company. All rights reserved.
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