Arthur.Rubin's Full Review: Lawrence Lessig - The Future of Ideas: The Fate of...
If Code was a map of the territory of IP law and cyberspace, The Future of Ideas is an updated map and a call to arms (or, at least action -- I'm not claiming he's advocating violence).
Dr. Lessig presents the thesis that recent changes in copyright law have created a situation where only those entities who have a large IP (Intellectual Property) library can afford to create new IP, due to threats of infringement lawsuits.
The book has a preface (I've never seen endnotes in a preface before), an introduction ("Free", describing what he means by something being "free" -- libre, rather than gratis, for the few French speakers in his readership). DOT.COMMONS, in which he goes into more detail and describes how freedom relates to the three layers of data transmission, DOT.CONTRAST, describing differences between the Internet and more conventional media, DOT.CONTROL, describing how the monopolists have taken control and what might be done about it, and an afterward entitled What Orrin Understands.
In case you were wondering, Dr. Lessig is a lawyer, so the work is scholarly (with hundreds of endnotes), as well as having dramatic stories to illustrate his points. He is a Constitutionalist who believes in the principle of "translation"; to try to track the values protected by the law, rather than interpreting the literal words..
For those who can't be bothered to read the book, I'll try to summarize his suggestions, from the chapter Alt.Commons in the section DOT.CONTROL.
In the physical layer, he suggests freeing some electromagnetic spectrum for uncontrolled cooperative uses, and allowing cities or phone companies to rent unused cable space without regulating their use.
In the code layer, he recommends encouraging open source platforms, requiring that any Internet traffic NOT be separately regulated by the ISPs (or ISP-equivalents) and/or separating (as was done with DSL) the line access and the software access. (When TPC provides DSL access, they cannot require that you use them as your ISP.)
In the content layer, he makes more recommendations, because this is the most visible layer.
COPYRIGHT: He suggests reversing the removal of the copyright registration requirement for published material. He particular, he recommends 5-year renewable terms, with a maximum of 15 renewals. As at present, the US Copyright Office could demand copies of the material for archival purposes. To avoid loss of copyright due to administrative mistakes by the author, he recommends the Copyright Office be allowed the power to forgive a late registration. (I might go so far as to say that damages should be limited to statutory damages if the registration is less than one term late.)
Advantages of this system are obvious (well, to me and to him, anyway). In addition to works which the author no longer cares to maintain the copyright passing to the public domain, requiring the renewal to maintain contact information would make it easier for those who wish to license other creators' works would be able to do so.
Details which would allow the individual authors here on Epinions to be able to maintain copyright are another problem. Perhaps a collective registration for all the user-submitted material could protect the individual material. I don't know. I'd wouldn't want to lose my copyright, but I would prefer to be able to quote authors from the 19th century without worry.
Software Copyright: Here, he recommends only allowing one renewal of the 5-year term, and requiring the source code be submitted to the Copyright Office as a condition of the copyright. As, for example, Microsoft only offers to maintain software for 5 years after release, this would allow third parties to be able to maintain code beyond its normally useful life. (For what it's worth, I admit this would benefit me, as I'm still running Windows 3.1 on this machine, and I'd like to be able to
Protecting Innovation He'd like there to be (at least) an affirmative defense to copyright violation that the author suffered no loss.
Protecting Music Here he suggests a compulsory license system, similar to that for music performers who use others' songs.
Rebuilding the Creative Commons: Specific suggestions include:
Creating a tax benefit for donation of IP to a public conservancy. This specifically applies to orphaned software, as I referred to above. If a software company would donate the source code to software they no longer wish to maintain to a conservancy, then others could maintain that software.
He also suggests a private attorney general statute to prosecute claims of false claim of copyright. It's presently illegal to make a false claim of copyright, but only US attorneys can so prosecute. According to Lessig, there have been no such prosecutions.
Limits on Code: He suggests that only copyright protection systems that preserve fair use should be protected under laws such as DMCA.
Limits on Contract He suggests that States should not (at the present time) be allowed to increase copyright protection by contract law.
Limit Commercial Exploitation: He suggests possible a possible requirement that copyright law only restrict commercial exploitation -- in other words, someone must obtain a commercial benefit or the copyright holder or licensee must have a commercial loss, for there to be a violation.
PATENTS
Here he suggests a new study on business method and software patents. I have mixed feelings about this, myself, as I've applied for a "method" patent which might be considered a "software patent". However, I think I would have been more likely to develop it if I was assured that no one could prevent me from using it if they had discovered it first. I'm not sure what my employer feels about that, but....I think I need to explain my position on this.
Here he suggests, until a study finds that these patents are more likely to aid innovation than to harm it, he recommends an moratorium on enforcement of such patents, an as-yet-unformulated limitation of damages, a requirement that an inventor report in the patent prior art that he should have known, and possibly a limitation of time on business method patents.
Afterward: What Orrin Understands
Here, he refers to Senator Orrin Hatch's (R-UT) approval of the anti-trust suits against Microsoft and his support of Napster. It's suggested by his opponents that his position is based on Novell and Corel, less successful competitors of Microsoft, being based in Utah, and that he has written some Christian music which the major labels refused.
But Lessig suggests that, unpopular though it may be to suggest that a politician acts on principle, Hatch may just be opposed to government-enforced concentrations of power.
I'll finish by quoting some of some of the liner notes. Although usually hyperbole, I agree with the quotes I'm presenting:
This book is the Silent Spring of ideas. Lawrence Lessig is telling a prophetic story of how the media-corporate complex is fencing off American culture in the name of intellectual property. His indictment is clear and shocking: our cultural patrimony is being stolen. Lessig is sounding the alarm -- Michael Wolfe
Lessig's masterly account warns us about the threats to the diversity and openness of information on the Internet and to innovation itself. This book is a must-read for anyone concerned about the future of information technology and its impact -- Mitch Kapor, cofounder, Electronic Frontier Foundation
The Future of Ideas is the most important work yet written about the grave threat posed to innovation and creativity in America and throughout the world. Lawrence Lessig documents the rapid and largely undebated expansion of government-granted monopolies over broad swatches of the knowledge our society relies on, and compares this with the role common access to knowledge has always played in America's vibrant culture and economy. He has written a Rosetta stone to a highly technical, legalistic debate and explains this trend in words we can all understand. This is a debate that finds today's largest global publishing and technology corporations on one side and Thomas Jefferson, the United States Constitution, and the rest of us on the other -- Bob Young, cofounder and chairman of Red Hat, Inc.
My notes on the liner notes
I've read Silent Spring, and I consider it greatly exaggerated. This book, however seems, if anything, to understate the problem. This last comment may be a little exaggerated. It's still the (second, after Code) book I would want if I wanted one book on the Internet and the law.
IP and me: I suppose it's somewhat relevant to my position on IP law as to what kinds of IP I have generated. In addition to a couple dozen professional papers (from which I get no royalties), my possible software patent (from which my employer may get a financial benefit) and the minuscule royalties I get here, my parents (who have over 100 papers between them) have written a few books. The royalty stream from those books is still around $400 per year.
Epinions Bug fixed: The review was moved to a topic which seems correct now.
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