The Future of Ideas

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One passage comes close to summing up the explicit reasoning of Lessig's disdain for draconian levels of control at the content layer (p. 215)

I've told a story about intellectual property in two critical competitive contexts. In both contexts, the emerging regime will have a significant regulartory effect. In both contexts, the regime will shift protection from the new to the old. The law in both cases will, on margin, protect teh old against the new. RIAA president Hilary Rosen was clear about this objective in the context of copyright law: No new ideas should be allowed unless the old system of distribution okays it. And this will be the certain, if unintended consequence of the patent system as well. Those most likely to be displaced by new innovation will have the power, through these government-backed monopolyies, to check or inhibit this innovation.

This power is teh product of government-backed monopolies that in the ordinary case raise little trouble. I am not against copyright law (I agree with Hollywood: if you have simply copied the whole of this book you are a thief); in the ordinary case, the scope of its monopoly ought to be respected. But when we, as a society, undergo a radical technological shift --which the Internet revolution certainly is --then we should reexamine the scope of the monopoly power we extend and ask once again whether that power makes any sense. Is it necessary? Is there reason to believe it will do some good?

The tradition before the Internet had favored massive increase in the scope of copyright law and a significant increase in the reach of patents. Essentially anything you could attribute to a creative work, you had to respect by getting permission of this creative work before you used it.

In a world like the world I described as the dark ages, this may not be a terrible thing. When all publishers are largish corporations, who really cares if creative energies must be licenesed? The licensing process is an ordinary cost of doing business, just like paying sales tax or filing statements with the SEC. It may, on the margin, inhibit a bit, but not a terribly significant amout.

But when the world of creativity shifts outside the largish corporation --when individuals and smaller groups are much more enabled to do this creative activity --then this system of exclusive licenses for every derivative use of a creative work begins to tax the creative process significantly. The opportunity cost, as economists would describe it, of this system of control is higher when, without this system of control, much more creative activity would go on.

Thus, when we have a massive shift in opportunity, we should be revaluating how necessary these systems of control are. We should be asking whether control is necessary, or at least how far control is required. And if we don't have a good reason for extending these systems of governmnet-backed control, then we shouldn't. If we have no good reason to believe a government-backed monopoly will help, then we have no good reason to establish government-backed monopolies.

At the end of chapter 7, I argued that the control of media in the dark ages may well be a product of economic constraints. That as long as economics constrains, the this system of concentration and control may be inevitable. The constraints I identified (the architectures of real space like physical barriers, geography, limited markets, economic incentives) are not to be imagined or ignored away. They are real and unavoidable.

But the constraints that I have described in this chapter are different. They are not "real" in the same sense. The constraints of IP are constraints we build. We create regimes of IP, and then the regimes we have build yield the control I have identified. No doubt these regimes are in large measure justified. No doubt in the main they promote progress. But often (in copyright for sure, and possibly with patents as well) the regime expands beyond its initial justification. The restrictions it imposes are artificial, in the sense that they don't promote progress; the simply benefit one person at the expense of another.

This then presses the fundamental question of this book: If the extremes of these constraints are not necessary, if there is no good evidence showing that they do any good, if they limit the range of creativity by virtue of the system of control they erect, why do we have them?

The Digital World is closer to the world of ideas than to the world of things (p. 116)