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“The Future of Ideas,” by Lawrence Lessig (Random House, 320 pages, $30) When Stanford University law professor Lawrence Lessig talks about the “dark ages” in his latest book on cyberspace, “The Future of Ideas,” he is referring to the 1970s, the time before the Internet. Yet the themes he strikes bring the real Dark Ages to mind. While the sun shone just as brightly during that period, the ideas had dimmed. Manuscripts from the Greeks and Romans were locked away in monasteries and castles, where they were accessible only to a privileged few, and the good ideas they contained were lost for centuries. Lessig doesn’t see the future as quite this bleak, but still, this is not an optimistic book. Today, in his view, commercial interests are locking up ideas, and there is no second Renaissance around the corner. Lessig’s thesis is that commercial interests, aided by the law, have demonstrated both the power and the inclination to use digital technologies, including the Internet, to exercise unprecedented control over communications — and hence to restrict the free flow of ideas — in order to maximize their profits. Publishers can use the technology, should they so choose, to levy a charge per reader per page for books. Music companies can charge for songs on a per-listen basis. Book, record and movie companies can use encryption technologies to prevent their products from being copied or exchanged with others. The Digital Millennium Copyright Act (DMCA) even allows them to enjoin publication of encryption-breaking ideas. Telecommunications companies can structure their networks in order to favor the content their affiliates provide. As a result, piece by piece, charge by charge, company by company, the circulation of ideas is being restricted in the name of free enterprise, and civilization is advancing into a dimmer, dumber digital age. To prevent this from happening, Lessig says, we must recognize the importance of holding ideas in a “commons” and of ensuring a fair balance between private and public rights in intellectual property. “Two fairly obscure ideas,” to use Lessig’s words, are at the core of his thinking. The first is the idea of a commons, an essentially “free” space or thing such as a park or street, Einstein’s theory of relativity, or writings in the public domain. Civilization flourishes, he believes, when an idea is treated as a commons except to the extent that limited private intellectual property rights in ideas — for instance, trademarks, patents and copyrights — are necessary to reward creative expression. The second idea is that of architecture. Whereas in the Dark Ages, the architecture of the controlling monasteries and castles was tangible in stone and mortar, digital architectures, such as those of cyberspace, can’t be seen or touched. Lessig wants the reader to conceptualize cyberspace as built from “layers” and borrows New York University law professor Yochai Benkler’s idea that modern communications has three layers: the physical layer consisting of the wires; the “code” layer made up of the computers and software that run communications networks; and the content layer, e.g., human speech and writing, pictures and music. Because the architecture of communications can determine how and whether we receive new ideas, Lessig examines each of the layers to determine if it should be made into a commons or left to the control of private enterprise. Take the voice telephone networks as an example. Telephone companies own the wires of the physical layer and route the calls via a code layer of computers. The content layer, however, belongs to the user who talks into the telephone. The reason the Internet poses such vexing questions about the future of ideas is that Internet technology provides powerful, subtle ways to control communications. Internet technologies, Lessig notes, allow the computers and companies that run the Internet to read the user’s communications and to discriminate in favor of or against certain content and applications. He refers to Jerome Saltzer’s description of what these “gatekeeper” functions might mean. For example, a cable company’s Internet service may discriminate against streaming video because it competes with the company’s cable television service. An Internet service provider may filter out communications it deems unacceptable for technical reasons, such as file sharing, but it could just as easily filter for political reasons. In 1999, Lessig published his first book on this subject, “Code and Other Laws of Cyberspace.” There he wrote about the lofty but unrealistic dreams that some had about the Internet’s potential. He also warned that the architecture of cyberspace allowed far more control by both government and the private sector than many of its denizens realized. But now, nearly three years later, Lessig turns his attention to how conventional law — statutes, court opinions and lawyers — can control the content layer of cyberspace. For example, fans of the television show “The Simpsons” were taken to court for posting images of the cartoon family on the fans’ Web site. The University of Nevada, Las Vegas, ran a free Web site with the tablature or chords from popular songs for guitar players to use until the recording industry complained that this violated their copyrights. Computer programmers developed software that allowed encrypted DVDs to be played on computers with the Linux operating system, but because they didn’t have the approval of the companies that developed the encryption schemes, the programmers were sued for violating the DMCA. And, of course, there is the story of how the recording industry brought suit against Napster to stop people from sharing music via the Internet. Lessig portrays this litigation as an effort by an old establishment to hold on to its power and profits against the threat of new and better ways of spreading ideas and doing business. Lessig also attacks the laws of real space, particularly intellectual property laws, for their role in dampening creativity and the free exchange of ideas. He begins the book with remarks by documentary film director Davis Guggenheim about the prominent role lawyers now play in deciding what can and what cannot be in a film. Later, he writes about the congressional proclivity to extend the term of existing copyrights. In 1998, Congress added 20 years to the term, thus keeping works like those by the poet Robert Frost out of the public domain for another generation. The result, says Lessig in words typical of the theme of this book, is: “The freedom to build upon and create new works is increasingly, and almost perpetually, restricted under existing law. To a degree unimaginable by the Framers of our Constitution, that control has been concentrated in the hands of the holders of copyrights — increasingly, large media companies.” Nonetheless, Lessig is not prepared to yield to the darkness: “This march backward is neither necessary nor complete. We still have the time to point policy in a different direction.” Thus, he puts forth a far-reaching agenda for reform. Arguably, this agenda reaches too far. It gores too many large, established oxen and may be a practical impossibility. If the establishment has been using litigation to protect its profits against competition from the new order, it is easy to imagine how it will react to attempts to implement Lessig’s recommendations. For example, he writes, “Broadcast television … is an extraordinary spectrum guzzler; in most contexts it would be best moved from the air to wires.” The National Association of Broadcasters, which many regard as the most powerful lobby in Washington, might disagree. Then what? Lessig also suggests that the copyright term be reduced from 150 years to five years plus renewals. This could add volumes to the public domain since many authors may not bother to renew. Yet the fact is that, for the past 40 years, Congress has been extending the term for copyright. The likelihood that it will reverse itself completely any time soon and adopt Lessig’s plan seems remote at best. On the other hand, perhaps Congress can be made to see the light. But mere summaries do not do justice to “The Future of Ideas.” As Lessig says in a different context, the devil is in the details, and he has turned the details into a highly readable and remarkably understandable tale of the history, law, technology and politics that underlie his thesis. He also provides an expansive overview of how these factors combined to create the Internet, synthesizing a range of seemingly unrelated subjects into a comprehensible whole. Thus, swept into this tale about the future of ideas are stories about plain old telephone service, radio, television, cable television, the Internet, the cell phone, film, sound recordings, books, newspapers, copyrights and patents. With this book, Lessig positions himself as the foremost advocate of cyberspace residents against the commercial interests that seek only profit from the medium. It is a brilliant manifesto for what Lessig believes to be the policies that should shape the future of the digital age. And it is an important book for anyone who cares about the future of ideas. Quoting Thomas Jefferson’s 1813 letter to Isaac McPherson, Lessig could just as well be writing about himself: “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.” D.C. lawyer James H. Johnston is a frequent contributor to Legal Times . He may be contacted at [email protected]

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