In the book The Future of Ideas –The fate of the commons in a connected world professor Lawrence Lessig at the Standford Law School introduces us to some issues of contemporary law and its implication on the Internet and creativity. Lessig, who is the chairman of Creative Commons, brings forward the restrictions imposed on the creativity by a hinge for more control on the physical, the code and the content layer. This division of layers he borrows from Yochai Benkler (23), and these three layers are used to explain the different aspects of the Internet culture, and its features.
One of the fundamental elements of the Internet is the end to end principle (e2e). Behind this lies a premise that simplicity in the architecture will make the transmission easier, more cost-efficient and more reliable, as well as more equal between the users. This idea is incorporated into the architecture of the Internet and the IP protocol which is responsible for finding the receiver and transmitting the packages to her. Since the intelligence is located at the ends the code operating at the core of the network is not enabled to ask about the content of the package or making any handling differences between the different users. Other principles of the Internet norms include that each client is a potential server, and vice versa. The equality is ensured in the code, and this code is open to all to apply since it is donated to the public domain. As we will see, the commercialization of the Internet is, according to Lessig, threatening these principles as more control is being pursued.
On the physical layer Lessig discusses the right the owners of infrastructure have to impose control over their customers. He draws attention to the cable companies, which have been restricting the freedom of their Internet users through their monopoly. The problem is that those larger corporations are using their monopolistic advantage on the platform to gain advantages over competitors on the content level. This is exemplified in how some cable companies are blocking online video, in the name of capacity, which is competing against the channels broadcasted on the network, other examples on limitations includes server restrictions, fixed backbone choice, filtering and no possibility to create a home network (156-157). The ownership structure is also changing towards that of more horizontal ownership, meaning that the same corporations that own the infrastructure also are content producers, and they are using their control over several layers to discriminate competitors.
On the content layer the interest organization of the movie and music industry (MPAA and RIAA) are using the new technology to strike down on possible infringements, and the US Congress and courts have in many ways let them do this, also outside the domain of copyright laws. They are increasing their control over the new services which are made possible by the Internet. perceive the consequences of this control oriented direction in copyright law as harmful. He points out that the argument behind the copyright law is, besides being an economic incentive through a limited monopoly on published work, to ensure the realization of fair use and to ensure the access to the work by the public. The latter has been overruled perpetually as the years a work is under the exclusive right of the author has increased. From initially 14 year to the lifetime of the copyright holder plus 70 years (107). Not only has there been an expansion in the law when it comes to duration, also the scope has been increased. From the first Copyright Act which gave authors of maps, charts and books an exclusive right, has the protection been expanded to also protect derivate work, and computer code among others. This means that the source code of programs made by organizations today will be protected for 95 years, in a world where major updates are shipped annually if not more frequent.
Lessig is pursuing greater attention paid to the commons, as they are an important repository to enhance creativity and other aspects beneficial to society such as education and the creation of opinions. Ideas, throughout history, have been built on other ideas. The Internet and digital technology has reduced the production cost of being creative, and to distribute the works. It contains a great potential, as it was originally created, but this potential has been regulated and diminished by the skepticism of the old regime which has been executing its power in the three layers to keep their advantages. Therefor Lessig asks for a weight decision between the market power of some companies on one hand and the value contributed to the society on the other. Can the strong rights of the copyright holder, the control exercised on the physical layer and the threats of private users, and impediment of new technology by the old players be justified, or do we need to change the laws and practices to enhance creativity again? (Lessig’s last words in the book are arguing that the initial values of the Internet are lost.)
Lessig suggest several changes which can be made. The government could regulate that no major player on the Internet could empower its own strategic behavior, it could also allocate a sector on each band of the radio waves to the commons. He further suggests that time of the exclusive copy right should be limited, but expandable upon request, and that rights are granted after application and not universally as they are today. Incentives should be made for computer companies to release the code they are not using to the public, and to be granted copyright they would have to escrow their source code with the government, and the time frame should be shortened to 5 years, renewable once. On the content layer could the file sharing of music not be treated as property right, but rather through compulsory licensing with a fee set to strike balance. This system is today used by the cable networks, where they pay a licence to the broadcaster as compensation, but they are not required an explicit permission to distribute signals. Lessig does also mention that there should be limits on contract rights distributed with software so fair use can be upheld.
The Future of Ideas –The fate of the commons in a connected world was written ten years ago, in 2001, and it is interesting how the examples, and the contemporary technology he mentions are historical today. Especially for the parts concerning the commons of the airwaves which he foresees have been actively introduced today with the wireless technology in local networks, RFID and Bluetooth. Despite the fact that there has been changes technically since the book was written are his ideas as important today as they were 10 years ago. Many of the problems Lessig mentions are still with us today, and they can remind us that the future of the Internet as well as the directions this may take, is not only dependent on new technology, but also on legislation regulating the layers in which the Internet operates.
As an alternative to copyright Lessig has worked on an alternative juridical licencing framework which creators can use with their works: Creative Commons. This framework is being adjusted to local law throughout the world, and make it possible to share work under alternative licences: Attribute, share-alike, Non Commercial and No Derivatives.
Creative Commons, About the Licences. Retrieved from: <http://creativecommons.org/licenses/>
Lessig, Lawrence.(2001) The future of Ideas. New York: Vintage Books
If you don’t want to buy the book it is also available under CC from Lawrence Lessig’s homepage
The picture is borrowed from Darren Tunnicliff on Flickr and the picture is licenced under…..you guessed it…..Creative Commons