An information society: Free or feudal?
Professor Lawrence Lessig, Stanford Law School
The future of the world’s information society
hangs fundamentally upon how issues of intellectual property get answered now.
I am not often asked to be a “visionary” about the Internet. Most of my
“visions” about the Internet are dark and pessimistic. And as most people
confronting pessimism would prefer to avoid the conversation that pessimism
begins, most seeking “visionaries” seek elsewhere. But let me, at least,
begin with a story that is optimistic, before I turn to reasons why we should be
worried about the promise in this optimism.
Professor Lawrence Lessig
ITU 0300034/A. de Ferron
When I close my eyes and think about what the technologists have built, I see
in their creation an extraordinary potential for humanity across the world. For
the first time in a millennium, we have the opportunity to rebuild the library
of Alexandria. We have the opportunity to make knowledge and culture available
across the world at practically no cost. We have a technology that can give all
people an equal opportunity to have access to, and participate in, the
construction of knowledge and culture, regardless of their geographic placing.
Their technology creates this opportunity because it embraces a fundamental
value that has been at the centre of many cultural traditions. Through a design
that technologists call “end-to-end,” the Internet builds intelligence at
the end, or “edge,” of the network; the network itself is as simple as
possible. Creativity and innovation can thus happen at the edge of the network
without the control of the owners of the network. Creativity and innovation are
The consequence is a network that invites creativity from anyone. And that
invitation has been accepted by innovators from around the world. The most
important innovations in the history of the Internet were neither created by
network owners nor by innovators from the United States. They were created by
outsiders. The World Wide Web was born in Switzerland, not at a
telecommunications laboratory, but in a laboratory investigating ways to share
knowledge about how our universe is built. Hotmail, a technology that enables
people from across the world to get access to e-mail, was not built by an
American but by an immigrant from India who had come to the United States. ICQ,
the first peer-to-peer chat technology, was not built in America, but by a
father and son in Israel who found a way to take very cheap machines and make
them a platform for real-time conversation around the world. These innovations
were made possible by a technical design that embraced a kind of neutrality.
That neutrality fuelled the growth of the Internet. When I close my eyes and
think about this technology, it is that potential that I see.
But for the last five years, my eyes have not been closed. They have been
wide open, watching the changes this platform for innovation has suffered. I
have been watching as those forces that have the objective to change the way
this platform enables innovation and creativity have worked to change the nature
of this platform. My work has been all about identifying this resistance to the
design of the original Internet. It has been about finding a way to make others
understand how the potential of this network is being threatened right now. Not
by conspiring governments, not by those who would like to destroy freedom in
principle, but by those who have a different vision about how culture should be
made. People who reject the idea that culture should be built at the end, or at
the edge. People who believe that culture should be managed and controlled by
concentrated media, and fed to consumers who simply accept what gets made.
Extremism about intellectual property
This vision that is counter to the values of the original Internet expresses
its ideals in a kind of extremism about intellectual property. This extremism is
something [the Preparatory Committee for the World Summit on the Information
Society] must address. It is an extremism in the vision of what information and
culture are. It is an ideal that says that information and culture, like
everything else, should be a kind of property, and hence owned and controlled.
And like any bit of ordinary property, this property too, this vision holds,
should be perfectly controlled and forever owned.
This extremism is false to our tradition. It is false to what we know about
what makes an information society flourish. And yet this extremism has captured
the debate about the legal rules that will define the conditions under which
people around the world are free to share information and ideas. Here are two
examples to give a sense of the extremism that I mean.
The issue of copyrights
One is the Eldred versus Ashcroft case, a challenge to the United States
Congress’s recent extension of the terms of copyright. The Sonny Bono
Copyright Term Extension Act extended the term of copyright by twenty years. It
was the eleventh time that Congress had extended the term of existing copyrights
in the last forty years. The reason these copyrights get extended is that a
small percentage of the work affected continues to have commercial life.
According to some estimates, just two per cent of the work affected by this
extension continues to have any commercial life. And yet, because of the
extension, all of the work created during this period remaining under copyright
continues to be burdened by this system of control that copyright effects. So,
for example, in 1930 there were 10 047 books published in the United States.
Some 174 of those books are still in print. If anyone wanted to make the 9853
remaining books available on the Internet, they would have to track down the
copyright owners for those 9853 books.
How would one do that? For there is no place where the names of current
copyright owners are kept. Instead, to publish these 9853 books would require an
army of private investigators to locate the owners of those rights to get
permission to make this culture available in the way a library of Alexandria
could promise. This extension to benefit two per cent thus locks up the
opportunity for the vast majority of this culture to be cultivated and spread.
Now the desire to extend the term of copyrights to benefit the two per cent
is not itself an evil desire. The desire to continue a profitable return to
investors is completely understandable. But the extremism comes in extending the
terms of all so that two per cent might benefit. Congress could have chosen to
extend the term of the two per cent only; but oblivious to the burden of this
form of control, it extended the terms of all. A more balanced view would avoid
this burden. Let Disney prosper. But their prosperity should not burden the free
spread of culture that has no continuing commercial value at all.
The second example is a statute passed by the United States Congress in 1998.
The Digital Millennium Copyright Act (DMCA), passed pursuant to international
obligations, makes it a crime to circumvent technologies designed to protect
copyrighted material. Again, that objective itself is not evil. It is a good
thing to assure that people cannot pirate copyrighted material. Copyright is an
extraordinary important part of the incentives necessary to create innovation.
It should be supported through legislation, and through technology if law is not
But this law is not written to ban circumventions for the purpose of
violating a copyright only. The DMCA also bans circumventions to enable uses
that would otherwise be completely legal uses of the underlying material. If you
circumvent a copyright protection measure for the purpose of “fair use,” for
example — a use that is protected by the American Constitution — the DMCA is
still violated. The law does not distinguish between improper and harmless
circumventions. An extremism, again, that does not understand the balance that
has defined the tradition of free culture.
Issues of intellectual property have been moved off
PrepCom-2 has been framed in a way that avoids confronting this extremism.
The issues of intellectual property have been moved off the table. They have
been left to a different forum, with different delegates. The suggestion has
been made that these issues of intellectual property are separate from the
questions about how one builds an information society. I wish they were
separate. But they are not.
was our past. It should not be our future.”
The last five years have demonstrated that the future of the world’s
information society hangs fundamentally upon how these questions of intellectual
property get answered now. Yet by separating that debate from the issues that
you will consider here (meaning PrepCom-2) — by placing in one house questions
about the information society and in another questions about intellectual
property — you assure that the answers both houses produce will remain
fundamentally at odds. For the information society is a place where culture is
both free and owned. It is a place where property coexists with the commons of
the public domain. Like a city where parks coexist with private houses, the
tradition of balance that has marked the protection of copyright seeks a world
where copyright coexists with the public domain.
If you do not resolve how these two traditions can live together, then you
will never secure an information society that flourishes through balance. These
two aspects of an information society — intellectual property and the public
domain — must be considered together. And no effort to solve them separately
can take seriously the demand of either. […]
There is no doubt that we will have an information society. The only question
is whether that information society will be free or feudal. A free society does
not mean that there is no property or that there are no markets. Freedom is
obviously built in a place where property and markets coexist with the free
exchange of ideas and a free exchange of culture.
But freedom can only exist where the reach of property or the reach of
control is balanced by something held in common. That balance must be found now,
because the extremism that defines this debate right now will lead the world
society into a place where the great potential of this technology will never be
I ask you with me to open your eyes to this threat. Because the freedom which
you gather here to celebrate — the potential of this society, and the
opportunity that this architecture of technology could give us all — will only
be preserved if it is allowed to exist in a legal culture that balances the
demands for control with the necessity of freedom.
Feudalism was our past. It should not be our future.