By Kurt Kleiner
© National Journal Group Inc.
Monday, April 29, 2002

By Lawrence Lessig Random House 352 pp. Purchase This Book

AT&T would have strangled the Internet in its cradle. Disney hated the VCR. Television broadcasters fought against cable. Even player piano rolls triggered lawsuits from sheet music publishers. Established businesses don't like innovators, and who can blame them? The innovators threaten to do things better and take business away. But on balance, most of us are better off because of innovation.

The Internet is probably the greatest innovation of the last 20 years, one that promises to give us new ways to distribute music, movies, and books; new ways to do business; and even new ways to create. But in The Future of Ideas: The Fate of the Commons in a Connected World, Lawrence Lessig maintains that old-style businesses are fighting to bring the Net under control and force a return to business as usual.

Two related battles are raging -- one technological, one legal -- and the author, a Stanford University law professor, explores both. On the legal end, old companies are aided by legislators and courts that have extended intellectual property protection far beyond what's reasonable, Lessig argues.

Traditionally, ideas have been seen as inherently different than property. People can share ideas without diminishing their own store of them, in a way that they can't share land or money. Copyright and patent laws were not enacted because we think people have a right to absolute control of their ideas. These laws are actually intended to encourage innovation by giving the writer or inventor a chance to profit while still benefiting society. The trick is to balance the owner's control with the public good.

New technologies often call for a new balance. A hundred years ago, sheet music publishers sued piano roll makers, claiming that the new devices infringed on their copyrights. The Supreme Court ruled for the piano roll makers, and Congress stepped in with a compromise -- piano roll makers had to pay a set fee to the sheet music companies for the use of their property, and the sheet music companies had to take it.

Nowadays, that sense of balance is gone. Consider the case of MP3.com, a music-sharing Web site. For users who could prove they already owned a particular compact disc, MP3.com would "stream" that music over the Internet to any computer the users happened to be working at. Users could leave their CDs at home and still listen to them at work or on the road.

Since the courts had already ruled that the owner of a CD has a right to copy it for personal use, this wasn't outrageous. After all, both the user and MP3.com had already paid for the music. Maybe two parties who already owned the music and had a right to copy it should also have the right to transfer copies between themselves. But the record companies sued MP3.com for copyright infringement and won. Now MP3.com must pay additional licensing fees to some record companies, and others refuse to allow their CDs to be streamed at all. The courts, instead of helping to craft a reasonable exception for a new technology -- as they did for piano rolls, VCRs, and cable TV -- instead awarded total control to the copyright holders.

In case after case examined by Lessig, judges and lawmakers confronted with the new technology have come down against innovation and in favor of total control. Technologically, similar control is being extended to the structure of the Internet itself, Lessig says, threatening to turn it into nothing more than glorified television, with its content controlled by media conglomerates.

Lessig argues that the Internet is powerful because it doesn't care who you are or what you're doing with it. As long as your computer obeys some basic rules, nothing stops you from hooking up and sending and receiving whatever you like.

Some service providers cringe at the Internet's freewheeling ways. Cable companies provide broadband access to millions of customers, but they also write their own rules about how customers can use the Internet. Some limit the amount of streaming video customers can watch (in theory because of bandwidth considerations, but perhaps also because streaming video could be a direct threat to their TV business).

Some proposed schemes would allow the Internet to treat some information preferentially -- for instance, rushing video along, but slowing down e-mail. Once you allow such discrimination, though, you might find that backbone Internet providers are speeding along the packets belonging to their corporate partners and slowing down the information that belongs to their more innovative competitors.

Lessig covers a number of other legal and technical issues, all with one common and discouraging theme: At the moment, control is beating out freedom. "Just because control is possible, it doesn't follow that it is justified. Instead, in a free society, the burden of justification should fall on him who would defend systems of control," Lessig writes. He argues persuasively that, for now, we've got it backwards. Credit Lessig with pulling off a difficult trick -- he's written a book largely about the arcana of Internet protocols and intellectual property laws, and he's made it engaging and even enjoyable. He also helps readers understand what the insiders already know: How we deal with these issues matters.

Kurt Kleiner, a former Washington correspondent for New Scientist, is a Toronto-based writer.

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