the beat of digital culture
home | archives | about us | feedback

Daily Relay

Tracking trends and developments in digital culture

Support Mindjack and look good doing it

search mindjack

mindjack release
join to receive news and announcements

The Future of Ideas

feature: October 07, 2002

The tottering architecture of intellectual property

Between the advent of the integrated circuit in the 1950s and the social growth of the internet in the early 1980s, digital media made a steady, developing impact on everyday American life. Following a greater expansion in the late 1980s, and especially through the takeoff of the World Wide Web in the early 1990s, the world of networked digital devices has expanded exponentially, touching and reshaping nearly aspect of life, from journalism to marketing, education to crime, military tactics to sexuality. The promises of this transformation are well-known, and range from the incidental to the utopian. At the same time, anxieties about the impact of the digital world upon the analog were widespread, appearing in popular culture and policymaking.

These anxieties have had their own, more recent, period of growth, influence, and penetration into everyday life. The demonstrated and increasingly effective benefits networked computing offered elicited fears - and, more significantly, responses - based precisely on those goods. The powers of increased information availability have triggered fears in those who profit by controlled information environments. Enhanced abilities to collaborate suggest expanded means to conspire. Potent tools for developing multimedia objects can threaten those whose interests reside in the stability of individual media assets. The ease of transferring such digital documents facilitates learning, community growth, and personal enjoyment, yet terrifies those with established stakes in controlling the distribution of those valued goods.

Hollywood pushes for the passive model; the technology pushes for the active; we should be fighting for the active.

-Lawrence Lessig

According to Lawrence Lessig, this correlation of anxiety to promise has crystallized into a new pattern. As described in his The Future of Ideas, those threatened by certain key aspects of the digital world have coalesced, organized policies, and launched a strategy to radically reconfigure the net so as to protect their position. This strategy, which Lessig names "enclosure of the digital commons", threatens to stunt the net's growth, quash some of its goods, and nullify a great deal of its potential for further social benefit. This article will review and assess the book, then examine how its predictions have fared in the year since its release

The Future of Ideas is remarkably readable, which, in part, accounts for its power and success. This is remarkable, in that Lessig weaves together fields not known for their ready accessibility: law, policy, networked computing, history of technology. The book makes these fields engaging through a style that is informal at times, more like a lecture or (more appropriately) a lawyer's address to a jury. Lessig addresses us frequently, asking the reader directly to consider, reflect, or picture. Rhetorical questions stud these lectures, compelling readers to engage with their own answers, then with the book's. Key terms and formulations repeat within and between chapters, knitting together disparate components while keeping the argument ever-present (for example, this Flash version of a Lessig talk). Extensive research and consultation are everywhere apparent, yet not in an intimidating way. To his credit, Lessig practices what he preaches by relying extensively on internet sources.

From the start, all of the arguments in The Future of Ideas rest on two theories about digital media in a networked environment: the notion of "the commons," and Yochai Benkler's (PDF) tripartite model of communication systems. English common law is responsible for the first, which describes a resource or good not owned by any individual or private institution. A commons, instead, is public property, and accessible to all. Older examples include a town green, a toll-less turnpike, and common fishing grounds. More modern instances are public parks. Although the language brings to mind connotations of nature and stability, commons have historically been defined, if not created by humans, and change dynamically. American television policies set aside a certain area for nonprofit, unowned usage, in public access channels. Governments can buy up private lands and turn them into parks. Famously, British landlords enclosed a series of commons to turn them into private grazing lands. This "enclosure movement" yielded profits and accumulated capital for the owners, while dispossessing many farmers, who in turn fled to cities and sparked a growth in urban centers before the industrial revolution arrived (James Boyle, "The Second Enclosure Movement and the Construction of the Public Domain").

The other key component for Lessig's brief, Benkler's theory, holds that all communication systems involve three layers:

At the bottom is a "physical" layer, across which communication travels. This is the computer, or wires, that link computers on the Internet. In the middle is a "logical" or "code" layer - the code that makes the hardware run. Here we might include the protocols that define the Internet and the software upon which those protocols run. At the top is a "content" layer - the actual stuff that gets said or transmitted across these wires. Here we include digital images, texts, on-line movies, and the like. (23)

This model applies well to nondigital systems. For example, public speaking depends on having access to a space permitting such speech. Communication by print requires printing presses (physical layer), practices of distribution, access, and literacy (code), and stories or arguments (content). Each layer may be described, according to Benkler, by a degree of control. Literacy, for example, can be a freely available social good, supported by public education; it may also be controlled and restricted to a few, as when druids kept the full meaning of runic codes a secret for themselves. The physical layer, of course, can change hands and levels of access. Content can be free to all (the telephone book) or privy only to a few (the inner documents of Scientology). The world of the public domain, from the ideas of an age to movies whose copyright has lapsed, is such a commons from which any may partake.

As the above passage shows, Lessig relies on this framework to describe the architecture, the complex system of computers, routers, phone lines, TCP/IP protocols, operating systems, and content that is the internet. The most salient feature of this structure is its "end to end" form, the lack of intervention or active intelligence between end users. Accessing a Web page, sending email, downloading a Flash movie requires little of the network between users, except efficient packet-switching. Without intervening controls, then, users are free to create and share their projects. "[T]he end-to-end principle renders the Internet an innovation commons, where innovators can develop and deploy new applications or content without the permission of anyone else" (40). Since nobody owns anything more than a tiny fraction of the hardware, nobody can force the net into an unwanted shape, or take it away. Information - programs, notes, movie files - proceeds from user to user without effective conscious interference.

Given the historical bases of these two foundational concepts, discussions of the book's arguments, polemical nature, and call to arms (see below) as situated in the present slight one of its key features. Furthermore, after laying out enclosure and Benkler's layers, in order to explain his argument about where enclosure is going, Lessig has describe where the environment and its problematic benefits have come from. Nearly one third of The Future of Ideas consists of a history of the internet and digital media, understood as a zone of creativity and rapid development, with positive effects even in the non-wired world. This section of the book (portions of Part I, all of Part II) is very valuable, in its accessibility, brevity, and currency.

Lessig draws our attention to the information architecture of the early internet, describing it as open and free, and therefore a fertile commons for innovation. What resulted from this space? The World Wide Web, for one. Berners-Lee's protocols were released into the internet without control from any of Benkler's layers: physical, code, or content. This globe-spanning colossus appeared on the commons, and transformed the world so widely as to become synonymous with "internet" for many. The net made room for other digital products, such as hypertext books and Web-based movies. In fact, the hypertext form appears as a powerful good throughout Lessig's book.

This innovation commons has shaped the nondigital world as well. Many businesses have, of course, changed their operations to include Web-based marketing, internet communication, and distributed asset management systems. Customer access to a planetary network of information has empowered critical purchasing, while expanding markets. As Lessig phrases it, the innovation-happy net has yielded new markets, means of distribution, demand, and participation. User literacies in using these technologies (how to surf the Web, send and receive email, etc.) have expanded, as they have been (largely) freely available.

However, the benefits and promise of further social goods from the internet appeared while causing concomitant and increasing anxieties and panics. Those who saw their business or political models being sapped by the digital world, and especially those who could not roll with the net to take advantage of its affordances, have fought back by adapting and creating new regimes of control. The nature of the digital world requires new ways of pinning behavior down. After all, digital material isn't rivalrous, in the economic sense - if I take your car, you can't drive it, but if I copy your song, you still retain it, untouched. Like most copyright activists, Lessig reaches back to Jefferson's famous warnings that intellectual property is a chimera, a bad analogy slapped onto the mental (or, in our case, digital) world from the physical. "The digital world is closer to the world of ideas than to the world of things" (116). In order to wrangle this new world of being, a reformation of digital practice occurs across all three levels of Benkler's levels. Although there is no conspiracy to attack the net, in Lessig's view, there is nevertheless an overlap of effect between new strategies in different layers:

At the physical level, the rapid growth of wireless computing offers an opportunity for changes in the internet's architecture. Although wireless began in a largely improvised, ad hoc way (think of warchalking), the possibilities of the market attracted investors very quickly. The question of allocating spectrum, the decisive one in the creation of the FCC in the 1930s, arises once more. The first decades of radio's growth saw an increasingly powerful set of policies to fence off spectrum, culminating in the 1934 Communications Act (74). Will the new wireless bands be available to all, or will sections of it be owned privately?

More urgently, at the code level, changes in how wires and computers enable connectivity begin to alter the end-to-end principle. While a series of court decisions and policies shaped telephone networks into neutral carriers, cable providers have won the right to protect and shape their networks. In order to protect ever-increasing, but ever-crowded bandwidth, a cable company may block certain file forms or content, such as peer-to-peer applications or video files. Further, insofar as cable companies provide access gateways to users, they can shape or restrict customer access to certain files or destinations. A good example of the latter is America On Line, the world's most popular internet service provider, who has every incentive and many tools to shape user experience in ways that interrupt end-to-end architecture. Another example is the ability of search engines to report bot-crawling results with bias.

The most visible sign of Lessig's enclosure movement at work is within Beckler's third, or content layer. Patterns of control are being established primarily through a reassertion and expansion of the copyright regime. During the early years of the internet, unrelated legal decisions established a climate of openness for intellectual property usage. The 1976 Copyright Act codifed fair use in a clear, national way for the first time. The 1983 "Betamax decision" (Universal City Studios v. Sony Corporation) established "timeshifting" as a principle, allowing unauthorized copying of clearly copyrighted intellectual property for personal use, via the then-new technology of videotape. As users began digitizing, creating, and sharing materials on-line, they were initially able to take advantage of a relaxed copyright atmosphere.

However, as early as 1990 the laws began to change, shifting the copyright balance from user towards owner. As Jessica Litman, author of Digital Copyright, points out, a series of cases established that many uses of computer files, from downloading to transferring between drives, constituted copying and, as such, fell under copyright laws. A series of high-profile public hearings held by Patent Commissioner Lehman's Working Group during the Clinton administration's years saw the promulgation of Green and White Papers (1994-1995), which urged changes in copyright policy to allow IP holders greater control of user activities. The largest IP holders, most notably the recording and movie industries, scrambled to define digitial copying of their properties as piracy, then to craft laws to punish it. The Gray and White Papers culminated in the 1998 passage of the Digital Millenium Copyright Act (DMCA), which activated in 2000.

Once the DMCA kicked in (2000), lawsuits raced over the internet. For example, was sued for creating a password-protected space for users to stash copies of works they'd legitimately purchased. MP3 defended itself on the ground of space-shifting, the reasonable enjoyment of a product relocated to a more convenient space. Although this openly draws on the Betamax decision to allow time-shifting, federal courts did not see the parallel, and found against MP3 for enabling illegal copying. More famously, the RIAA sued Napster for more extravagant file-sharing, especially under the peer-to-peer structure. Napster tried another tack on the Betamax defense, arguing that while users could misuse their service, they were not being encouraged to do so - much as a hardware store owner could protect herself from charges of abetting a break-in from having sold a crowbar, a tool with many well-known positive uses. The digital device could be used for good, as well as evil, and the latter should not, ran the argument, drive a ruling that also prohibited a significant instance of the former. Federal courts found the sheer amount, rather than the proportion, of illicit filetrading to be enough, and gradually cut Napster down.

Lessig draws our attention to the ways copyright becomes a regime of control. While the laws expand, it is their enforcement through digital technologies that becomes a major driver of change.

At a broader level, Lessig draws our attention to the ways copyright becomes a regime of control. While the laws expand, it is their enforcement through digital technologies that becomes a major driver of change. Tracking costs decrease in the networked world, as compared with the analogue, where vending and consumption remain fairly decoupled. Violations are easy to monitor, and can be readily shaped by shrinkwrap agreements. Bots can crawl the net, looking for violations. Congress has extended copyright terms frequently, often as Disney's key IP neared the public domain. Rather than allowing IP to enter the public commons, extended copyright terms expand the realm of IP control. The most recent iteration, the 1998 Sonny Bono Act, stretches copyright ownership to seventy years. An increasing amount of IP remains controlled, under ownership's copyright, for a longer time. "[Y]ou're not creating incentive to produce anything new, you are just granting monopoly control for certain speech in exchange for nothing granted to the public." (Interview with Sean Pollack, "A Conversation with Lawrence Lessig", February 2002.)

Such language of control unsurprisingly leads to discussions of this controlling drive as a move against free speech. From Dunkin' Donuts to the CPHack application (a deconstruction of popular filtering program CyberPatrol), copyright holders can portray critics' use of their materials as copyright violation. Since some speech makes use of prior speech, the extension of copyright periods reduces such transformative or edition-based work. As other critics, such as Siva Vaidhyanathan, have noted, this leads to a limitation on derivative creativity, such as jazz variations on preexisting tunes, fan fiction, or DJ mixing. That "the ability to propertize culture in America is [now] essentially unlimited by the Constitution" (198) means there is less room to create.

The language of property also brings into play a one-sided view of IP usage. While some readers (or listeners, players, etc.) consume products passively, absorbing content without significant activity on their part, others turn the IP into material for their own creations. Parodists warp source material to mock it, as The Wind Done Gone turned Gone With the Wind to confront its racist context openly. DJs mix songs, sounds, elements, and samples to bring about new soundscapes. Tinkerers take products further than they were perhaps intended, as children hacked Lego's small software and "Aibopet" ramped up the Sony robot dog's capabilities. The American situation is perhaps not as desirable as what European law allows, "moral copyright", where any usage the IP holder deems immoral is actionable; nevertheless, copyright law in the United States tends to assume passive consumption as the norm, punishing active:

This is the crucial question of the time. Hollywood pushes for the passive model; the technology pushes for the active; we should be fighting for the active.
- Lessig in email interview

The fair use defense, most correctly cited by educators, scholars, and librarians, begins to wither away. The DMCA admits a fair use allowance to circumvent anti-copyright coding - in order to better ascertain a future purchase. In suit after suit, IP holders have used copyright to limit scholarly and creative use of content, formerly admissible under fair use (Siva Vaidhyanathan, "Copyright as Cudgel").

The cumulative effect of Lessig's argument carried a strongly political charge, heightened by the book's climactic, repeated calls to policy-level action. Yet the author takes great pains to emphasize his politics are nontraditional, not locatable on any left-right continuum. While the enhanced protection of economic property through expanded copyright regimes smacks of classic conservatism, Lessig cites conservative, market-focused Judge Posner repeatedly, and with approval. His call to arms:

[It] is not the traditional struggle between Left and Right or between conservative and liberal. To question assumptions about the scope of 'property' is not to question property. I am fanatically pro-market. The innovation that I defend is commercial and noncommercial alike (6)

Both sides equally offend him: "policymakers on the Right and on the Left race to embrace a system of perfect control". Put another way, his resistance to overweening control regimes draws on a mixture of the new left's liberation/democracy discourse and old libertarianism. It's also a stance appealing to common sense and rationality, in attacking "[c]ontrol without reason". Disappointment at the market seeps through the struggle of arguments, as when Lessig admits that competition should generate ISPs to guarantee free access, but fails to do so because of a state-limited bandwidth. "This control is largely benign, at least where markets are competitive" (110). As Christensen argues in his Innovator's Dilemma, innovations can threaten the stability of business models, whose stakeholders react in a limiting way. However, a hint of a slant towards progressive politics, or at least discourse, emerges over the course of the book, from the (albeit ironic) call for "environmentalism in the Internet era" to repeated appeals for the good of society, to the accumulated attacks on corporations. Arguments against increased concentration of ownership of media properties appear fairly unparsed or hedged. A swipe at the entertainment industry for overdefending "a puny part of the American economy" simply misses the enormous scale of IP monies.

So how has Lessig's model fared since the release of Future of Ideas?

The threat within Benkler's physical layer is the most modestly realized of the three. While cable modem access has continued to grow, and AOL show no signs of corporate collapse, there have been few cases of restrictions occurring at the hardware and wire level. While Cisco sells intelligent, configurable routers which clearly violate the e2e principle, they don't appear to have had a noticeable impact. Comcast's decision to track users without notification brought about horrendous publicity. Competition is too vigorous, and options remain open. Yet legislation targeted at the content layer, such as the (CBDTPA), mandates copyright protection built into hardware. Similarly, the steady drive to increase copy protection often leads to hardware ramifications, such as Apple's decision to restrict the DVD burning it once joyously celebrated.

Lessig's book performs better in predicting developments in the protocol layer. The Federal Communication Commission ruled that broadband connectivity is essentially an information medium, rather than a telecommunication device. While this makes some intuitive sense, the ruling frees cable operators from the requisite openness of wires that telcos endure, freeing them up to regulate content as they see fit. Meanwhile, the struggle between open source/free software and propriety software (operating systems to office apps) continues.

The content layer has emerged as the most visible and effective instance of the commons fight. Napster was whittled into insignificance. Lawsuits have dogged p2p firms, while targeting presumably high-volume individual users as pirates. (For example, the RIAA suing Verizon to reveal one subscriber's information) Legislation has entered Congress, as noted above, to mandate hardware blocks to copyright misuse; Representative Berman has more recently introduced a bill allowing IP holders to examine users' publicly-available folders, in order to identify illicit p2p trading.

An understated player in this struggle, American librarians, face a clearly demarcated battlefield. Librarians have traditionally been key players in the information commons, defenders of intellectual property access, and, especially after the 1976, copyright laws, beneficiaries of copyright regulation. The recent digital era has been less kind...

An understated player in this struggle, American librarians, face a clearly demarcated battlefield. Librarians have traditionally been key players in the information commons, defenders of intellectual property access, and, especially after the 1976, copyright laws, beneficiaries of copyright regulation (see Bolling's brilliant cartoon, "Library System Terrorizes Publishing Industry"). The recent digital era has been less kind: the DMCA scaling back fair use for libraries, the Librarian of Congress approving the DMCA. Current laws and rulings might make libraries increasingly liable for patrons' digital transgressions, and create disincentives for librarians' creative and effective use of the internet and non-net digital materials. Asked if the outlook is bleak for librarians in this age of enclosure, Lessig replied affirmatively:

Absolutely, and they don't understand their true potential in this. There is strong support growing to undercut libraries, unless they get involved in defending the commons.
- Lessig in email interview

More generally, content control continues to harass freedom of speech. Some businesses have argued copyright infringement in order to restrict criticism, going so far as to contest DNS entries that use their names, as in the cases of Jerry Fallwell and Ford. Hyperlinking, the freedom of which is essential to Berners-Lee's conception of the Web, has been complicated by the "deep linking" controversy. According to litigants operating under this concept, IP owners should be able to discourage users from casually linking to documents "deep within" their Web sites, without passing through portals or other mechanisms designed to shape the browser's experience.

To what extent has opposition to the commons threat appeared? Lessig himself has taken to the road as an avatar of the resistance. He gives well-publicized talks, makes his case on national radio, published in technology journals and takes Webbed questions on geek sites. At another level, he has organized an alternative copyright organization, the Creative Commons. The CC offers a toolkit of alternative copyright possibilities, beyond the simple assertion of ownership: attribution, noncommercial, no derivative works, and copyleft. Others have taken up the cause, such as Duke University, in their decision to fund a research on the critical study of copyright. The Chilling Effects archives cases of copyright stifling free speech.

Most dramatically, the anti-enclosure campaign has fought its way to the United States Supreme Court. Tim Eldred has sued to protect an older, shorter term for copyright, in order to gain access to documents he wishes to turn into public domain HTML books. Lessig has joined the suit as counsel, arguing that the Sonny Bono extension violates the Constitutional language for copyright's utility. Although he has lost every hearing along the way, Lessig has nevertheless won his way to argue this critical point before America's final court of appeal. The trial, scheduled to open during the second week of October, may be defused if the Supremes set the case aside without comment. Otherwise, it should prove to be a showcase of contending views on copyright: commons versus control, with powerful implications for the ways we create and use ideas.

Bryan Alexander is an associate director of the Center for Educational Technology, and assistant professor of English at Centenary College. His specialties along these lines include digital writing, copyright, information literacy, and, especially, interdisciplinary collaboration.

advertise here
email for info

home | about us | feedback