March 17, 2004

Lessig: IP protection a business, not cultural, battleground

Author: Chris Preimesberger

SAN FRANCISCO -- Stanford University law professor, author, and Creative Commons chairman Lawrence Lessig Tuesday sharpened the definition of the ongoing legal struggle to satisfy both proprietary and open source advocates through equitable intellectual property regulations. "Contrary to what many people see as a cultural war between conservative business types and liberal independents, this is not a 'commerce versus anything' conflict. It's about powerful (business) interests and if they can stop new innovators," Lessig said.

Lessig, one of the most outspoken and articulate scholars in the legalities of open source and intellectual property, was the keynote speaker on the opening day of the Genus Group's first Open Source Business Conference at the Westin St. Francis on Union Square. The conference, which concludes Wednesday and was organized by Novell's Matt Asay, is well attended and stocked with some of the most knowledgeable experts in the business of open source software.

Lessig, who spoke on "The Creator's Dilemma: Open Source, Open Society, Open Innovation," noted that U.S. intellectual property and copyright laws were first recorded in the 19th century, and that even rules written in the late 20th century are already out of step with the needs of today's connected business world. "These laws require permission up front to use others' ideas for inspiration. Opportunities are being threatened by the mix and remix of culture," Lessig said.

Technology finds that it must fit itself to conform to last century's laws, rather than the laws fitting themselves to the technology, he said.

Lawrence Lessig

"These laws have become an insane and unintended burden on creators, because nobody had conceived of the Internet at the time, which has changed everything," he said. "Nobody had any idea of the new business opportunities and new businesses that were to be created by the Internet. This is why we need real reform now in intellectual property protection. Unfortunately, I don't see anybody taking the lead in Washington to do anything about this."

Growth in creative industries such as radio, television, movies, publishing, music -- and, yes, software -- is threatened when "a few powerful interests control how culture develops. Growth must occur in creative businesses when they protect themselves from these controlling interests," Lessig said.

Creative people should mark all of their original content and allow it to be licensed according to their own will. To do this, they should register it with a qualified third party and allow it to be available for public review, so that the broad concepts of their creativity spur others on to additional creativity, he said. Every artist should share something in the public domain to some extent, Lessig said, while making sure that the work as a whole is protected as to its ownership.

"Let the commercial interests compete on execution of the ideas; that's the free enterprise system," Lessig said. "But the creators need to maintain the freedom to distribute their ideas any way they want. They shouldn't be bogged down by 20-year copyrights and other old restrictions that bottle up good ideas" on keep them on the shelf, Lessig said.

Lessig, whose latest book is "The Future of Ideas" (Random House), used the analogy of photography to illustrate his point.

"Daguerre created his photo process in 1839. It was cumbersome, difficult to use, and expensive. Photography's growth chart was very slow, to say the least. In 1888, George Eastman invented the Kodak camera, which was much easier to use, and inexpensive. The photography growth chart took off very fast. Eastman didn't need 'permission' to build a better camera. Had there been restrictions on Daguerre's idea early on, the history of photography would be very different from what we have today," Lessig said.

Lessig also used a custom-made video to illustrate a point that "piracy" as a modern term is often taken out of context and most often considered something illegal, when it can also be used for creative purposes such as entertainment.

The brief but hilarious video consisted of clips of President Bush and U.K. Prime Minister Tony Blair speaking at different appearances, but the soundtrack was a recording of Lionel Richie and Diana Ross' sugary "Endless Love." The video was edited so meticulously well that it appeared as though Bush and Blair were mouthing the exact words that Richie and Ross were singing.

"Now that can be considered 'piracy,'" Lessig said. "I've 'pirated' music and video belonging to someone else, and this is the result." The audience enjoyed it. No doubt the piece would be a major comedic hit on commercial television.

"Open source depends upon intellectual property rules for power, so it can set its terms," Lessig said. "It is not contrary to copyright law. What we want to do is strike a balance between ideas and enforcement."

Silicon Valley as a whole has been "pathetic" in defending the rights of its creative people. "We believe in competition between business models and within business models," Lessig said, "and monopolies tend to weaken this competition. Support for open platforms is also support for business in general. Support for competition is also cupport for culture. We have another 'Kodak opportunity.' We need to eliminate the debate between capitalism and communism and reframe it to between creators and business."


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