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The End of Innovation?
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Koman: So should he have released it as open source? Would that have solved his problem?



Lessig: No, that wouldn't have solved the problem, because he still would have been the author and licensing it. I'm not sure how he can solve his problem. And that's a symptom that also strikes people as extreme. It essentially means that any software written around the world that happens to be inconsistent with American law is now subject to criminal prosecution in the United States, you know?

Koman: You were talking earlier about the assumptions that the DMCA was based on -- basically that it would be technically difficult to protect copyright material, that some hacker out there would always crack the latest scheme, and so the law is in place to go where technology was assumed not to be able to go. Is it not still true that any encryption solution out there is bound to be hacked by a couple of programmers with a couple of days on their hands? That is, if we overturn the DMCA, is the copyright protection by code still strong or is it bound to be cracked?

"Open societies with free people don't get them to obey the law by coding it so they can't do anything different."

Lessig: First of all, I'm not saying that there should be no legal protection. I think the legal protection should be targeted on what we properly think of as piracy and exempting code that facilitates traditional fair use. That's the kind of DMCA I think would be perfectly adequate. Now, you're right that most of these encryption systems that are out there are easily cracked or crackable after a relatively short amount of time, but there's an implicit assumption about what follows from that fact. There's an article in Inside magazine criticizing people who were criticizing the arrest of Sklyarov, and it kind of races breathlessly to this conclusion that, "The big difference is that once you crack the encryption system on a novel, you can then post it on the Internet and anybody can download it for free anywhere."

P2P and Web Services Speaker

Lawrence Lessig will give his keynote, "Preserving the Innovation Commons: What's At Stake" at the O'Reilly Conference on Peer to Peer and Web Services

Lawrence Lessig at February's O'Reilly P2P Conference

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Now this is a very crude understanding of what happens actually when you crack an encryption system. So certainly it's true that it's easier to distribute stuff in cyberspace than in real space, but to the extent the laws are targeting piracy, it's also easier to track down pirates in cyberspace than it is in real space. So it's true that the ability to crack the systems will mean that you can never have perfect protection, but perfect protection is not something we have in real space, either; and in fact I think we'll get closer to perfect protection in cyberspace than we will ever get in real space, even without something like the Digital Millennium Copyright Act.

So it's this kind of panic, that once there's any breach in the dam, then that's the end of all creative activity, which just seems to me to be completely unconsidered. You know, it's a messy world in all contexts and what we typically do is accept that freedom entails a certain amount of law breaking, and that doesn't mean you embrace law breakers or say that they should go free. People who are cracking copyright for the purpose of distributing content contrary to the legitimate control of the copyright owner or people who are cracking content for the purpose of redistributing for commercial purposes other people's content -- are criminals and they should be prosecuted as such. But you shouldn't lock up every technologist and make it impossible for them to experiment with encryption technologies merely because there are criminals out there. We don't do that with guns. I mean that's the bizarre thing, you know -- that employees at Smith & Wesson don't have to fear that the FBI is going to swoop down and arrest them because their products led to somebody being killed, yet employees of software companies need to fear that some FBI agent is going to swoop down and arrest them because it's possible that somebody used their code to steal the latest John Grisham novel.

Koman: Do you find that with Napster as a poster child that the whole P2P space is some sort of touchstone for things that challenge sort of status quo notions about morality in this stuff? That is, do you think there's some sort of over-the-top attacks on things that qualify as being peer-to-peer. And so besides the piracy accusations around Napster, there's also this story last week that Rep. Henry Waxman was very upset about the existence of pornography on the Gnutella network. Is there something about the notion of people without intermediation sharing their computers and having direct access to each other, is there something challenging about that to the status quo?

Lessig: Well, certainly peer-to-peer systems will make it harder for there to be centralized control of all sorts of things -- centralized control of criminal law, centralized control of morality, centralized control of culture. All of those things become harder when peer-to-peer systems basically vest that control closer to the individual. Now, in many contexts what we typically think is, "That's a good thing for the purpose of freedom, and a free and open society." We don't really embrace, openly at least, the idea that governments and powerful interests ought to be able to exercise direct control over the way we think or the things we buy or believe in, even though we do think that laws ought to be enforced and people ought not to be free to go out and break the law.

I think what peer-to-peer generally will be seen as is a threat to the ability to exercise this kind of centralized control, and many different interests will unite against that threat, and they include moral interests. This is the concern about pornography and Gnutella. They include copyright interests. They include content industries like the recording industry, which very much doesn't want to create an architecture that enables peer-to-peer distribution of content as opposed to this more-centralized system for distributing content. So I think all of those will unite behind this picture of a more-centralized universe and therefore resist the decentralization that peer-to-peer technologies could enable. And the fight about peer-to-peer will then be really a fight for the liberty of peer-to-peer systems to exist independent of these more-centralized, traditional structures.

Koman: And do you have any recommendations on where as a country we ought to be going? Should we be making a U-turn from the road we've taken recently?

Lessig: Yes. I think we should go back to the principles that defined us originally, which was about open societies with free people who should obey the law but you don't get them to obey the law by basically coding it so that they can't do anything different. You get them to obey the law by making the law reasonable and getting people to be respectful of it, and that's the direction we ought to be going.

Koman: What does the outlook look like for you for technology innovators that are interested in using some of these P2P concepts.

Lessig: Right now, not good -- because there's been no strong case or principle since the pornography cases in the Supreme Court, which has affirmed the principle of innovation and decentralized control. Instead, the general trend has been to a much stronger centralization to protect state and private interests. So until we have once again recognition and an embrace of the principle of freedom by some important governmental actor, I don't think we're going to actually see it realized in the actual litigation about these challenges to traditional interests.

Koman: So for the P2P technologists coming to the conference, it sounds like you don't have much good news.

Lessig: No.