Who owns ideas?

How the expansion of intellectual property law puts a brake on new developments.

Joe Kaplinsky

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Topics Politics

When Warner Brothers raised copyright concerns over the Marx Brothers spoof A Night in Casablanca, Groucho fired back: ‘What about “Warner Brothers”? Do you own that too? You probably have the right to use the name Warner, but what about Brothers? Professionally, we were brothers long before you were.’ (1)

Lawrence Lessig would have been on Groucho’s side. His latest book, The Future of Ideas: The Fate of the Commons in a Connected World, looks at how restrictions imposed by intellectual property law have run out of control, and how that afflicts the internet.

Lessig dislikes the restrictions produced both by the unfettered market and by state action. But where most commentators propose some kind of ‘third way’ compromise between the two, Lessig sees today’s trends as embodying the worst of both worlds. He isn’t hostile to regulation as such and is keen to reign in monopolies – but he does object to ‘control’, whether exercised by the state or the private sector.

Lessig fears that the innovation that led to the creation of the internet is coming to an end. He reckons that the old dinosaurs that were supposed to have been swept away by the new technologies are achieving a stranglehold over the future. So music companies are able to kill off new forms of distribution, like Napster. Broadcasters prevent new uses of radio spectrum. Microsoft works ruthlessly to destroy any competition before the competition even gets a chance to mount a challenge in the marketplace.

Lessig doesn’t think there is anything wrong with private companies behaving in this way. And he recognises that those with vested interests in the present can always be expected to oppose change. But he strongly opposes the way the law, and by extension society, seems happy acquiescing to, and even encouraging, this process. According to Lessig, changes in copyright and patent law, and the regulation of broadcasting and telecommunications, all work to give the old interests a veto over trying out new ways of doing things.

The consequence is that we look set to waste the potential of IT, and the future will look much like the present: ‘Take the net, mix it with the fanciest TV, add a simple way to buy things, and that’s pretty much it.’ (2) There is no shortage of critics of corporate power, on- or offline – but Lessig plays up his pro-market credentials as a counter to today’s anti-capitalists who end up being anti-everything. On balance, his argument is in favour of freedom rather than a parochial championing of small over big.

Lessig is right that the internet has only scratched the surface of what it could be. Even sticking to the limited realm of culture, as he tends to, the description is exciting. The strength of the new technologies is enabling cooperation: one person can take the work of another and build upon it. Present technology gives us only a glimpse of the future.

‘Digital technology could enable an extraordinary range of ordinary people to become part of a creative process’, writes Lessig. ‘To move from the life of a “consumer” (just think about what that word means – passive, couch potato, fed) of music – and not just music, but film, and art and commerce – to a life where one can individually and collectively participate in making something new.’ (3)

You could point out that creativity requires education and effort, not just technology. But regardless of these restrictions, the potential that Lessig highlights is real – as are the barriers that he worries about. Almost everything we do makes use of other people’s work, and the use of culture has traditionally been free – whether it be scientific ideas or artistic conventions. But today, these uses are being restricted by law and technology.

In the intellectual sphere, property appears as a particularly perverse restriction on the process of creativity. You cannot take somebody else’s work and build on it, because it is copyrighted, even where there is no direct loss to the owner. Yet over the past 20 years there has been a tremendous expansion of intellectual property (IP). Its impact has been most evident in the most dynamic new industries – IT and biotechnology – as well as in the much hyped ‘cultural industries’ – film, music and publishing – contributing to the impression of an ‘information society’ in which all the value that counts is IP.

Lessig’s most important contribution is to help us think about these new forms of property. In an important sense these new forms of property are not property at all. Both the critics and the proponents of IP usually see IP as an extension of the market. But for Lessig, IP is first and foremost a ‘form of government regulation’. In substance, IP is just a government-backed monopoly – and it is this that unites such different forms of IP as copyright on software, a patent on a business method and laws that ban the circumvention of copy protection on CDs, as well as more traditional copyrights, patents and trademarks.

Certainly, IP is a form of property, with the benefits and drawbacks that entails. But Lessig is right to focus on its other aspect, as regulation. IP is now big business, and in big business the regulatory aspect comes to the fore. The expansion of these monopolies has the effect both of forcing companies to negotiate and of providing a state-guaranteed framework in which negotiation and cross-licensing can take place. The downside is the inevitable stifling of innovation created by monopoly.

Lessig’s alternative is an ‘innovation commons’ – where nobody would have the right to discriminate against the new. To illustrate the idea, he gives the example of the electricity grid. It is not necessary to register a new device with the grid before you plug it in, and anybody is free to use the grid to run their new inventions. Lessig worries that the internet is being rebuilt to allow discrimination, so that certain uses get priority treatment while others are downgraded.

There are two main weaknesses in Lessig’s account: his explanation of why IP is proving so popular, and his overstated distinction between the on- and offline worlds.

Lessig attributes the popularity of IP to ‘a blindness that affects our political culture generally. We have been so captured by the ideals of property and control that we don’t even see the benefits from resources not perfectly controlled. Resistance to property is read as an endorsement of the state. The challenge to extreme propertisation is read as the endorsement of nationalisation’ (4).

He is right about blindness to possibility, but wrong about the causes of it. The problem is not a fear of nationalisation, but a fear of an out-of-control future. The benefits that Lessig refers to cannot all be anticipated, and realising them means taking risks.

Take the control-freakery of brand managers who demand that fans take down websites dedicated to The Simpsons or Buffy the Vampire Slayer or suchlike. You might think that a flourishing fan base would be good for a product. But the problem is that brand managers would have to take the rough with the smooth, and once you release your product to the world it will be used for everything from parody to porn. And brand managers prefer security to growth.

Lessig seems to think that the support for IP is just a misunderstanding. If only people understood it as regulation rather than property, he suggests, they would turn against it. In fact, the support for property and the market is mostly rhetorical, while what is really in vogue today is regulation.

Then there is Lessig’s distinction between ‘real space’ and ‘cyberspace.’ The internet clearly has its own possibilities and problems, but the division between on- and offline is not so absolute. In the offline world, says Lessig, the market is the most efficient form of organisation, and any remaining scarcity is down to the ‘laws of physics’. The limits imposed by the market on consumption are, for Lessig, a natural necessity. So he abandons ‘real space’ and transfers his hopes into cyberspace, where, he claims, we get to construct the laws of physics. Lessig sees digital products as being more like ideas than physical goods, arguing that there is no need to limit their consumption.

This misunderstands the role of the market. Lessig mentions that the market provides incentives for production, but he doesn’t emphasise this fact – instead focusing on how the market limits consumption of scarce resources. But the organisation of production by the market is far more important. Today’s limits to consumption are nothing to do with the ‘laws of physics’, but are a consequence of limited production as organised by the market. This is significant – when we consider production instead of consumption, requiring capital and labour, then ‘cyberspace’ begins to look a lot more like ‘real space’.

As a result of his misunderstanding, Lessig fails to investigate how further integrating the internet into ‘real space’ could provide the biggest boost for the new technologies. Rather than seeing the online world as an exception, it is more useful to see it as a prototype. Because it is newly emerging and dynamic, it is shaped by the present rather than the past.

Lessig skirts around the origin of the problem: monopoly. He is right that copyright and patent laws need to be limited rather than extended – but the problem of monopoly and lack of innovation does not arise from bad regulation. The tendency to monopoly arises in mature industries out of competition on the market. Today the problem is peculiarly exasperated by a risk-averse and short-termist culture, creating a climate where companies make money by suing competitors or licensing technology, and minimising uncertainty by inviting state regulation.

Still, the first step in the argument is that these developments are a problem. And on that, Lessig does an excellent job.

Buy Lawrence Lessig’s The Future of Ideas: The Fate of the Commons in a Connected World from Amazon (UK) or Amazon (USA)

Read on:

Self-regulation makes us all blind, by Sandy Starr

Copyright and wrongs, by Chris Evans

See Lawrence Lessig’s website

(1) The Groucho Letters: Letters from and to Groucho Marx, Groucho Marx, Michael Joseph Ltd, 1967, p14. Buy this book from Amazon (USA)

(2) The Future of Ideas: The Fate of the Commons in a Connected World, Lawrence Lessig, p7

(3) The Future of Ideas: The Fate of the Commons in a Connected World, Lawrence Lessig, p9

(4) The Future of Ideas: The Fate of the Commons in a Connected World, Lawrence Lessig, p237

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Topics Politics

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