Technology and the Threat to the Intellectual Commons

• By Phillip D. Long
• 09/13/02

“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea...Its peculiar character, too, is that no one possesses the less, because every other possess the whole of it. He who receives an idea from me, receives instruction himself without lessening mine.”

So begins an extraordinary lecture by Stanford Law Professor Lawrence Lessig, given to the Berkman Center for Internet and Society2 nearly three years ago calling our attention to the currents swirling to defeat our open society and destroy one of its central tenets, the sharing and vital creative power of an intellectual commons.

Why is this a topic for a technology trends column, you might ask. It is one consequence of our technology that we have the ability to express ideas to a global audience who can chose to read or ignore our ideas, whatever they may be. The operative word there is ‘chose’. And it is in this opportunity that the current developments in two arenas, law and networking technology, are conspiring to remove. It can do so if we are complacent and fail to speak up. So let me say outright, this column, unlike others, seeks to get your attention, to challenge your thinking and to implore you toward action. What that action may be is entirely your choice - but this is a time to do something, to engage in the debate about the future of our collective intellectual commons.

Law as Code. The thesis of Lessig’s argument is that the nature of cyberspace, the online environment, is a reflection of the programming code that creates it. Lessig writes, “This code sets the rules of this space; it regulates behavior in this space; it determines what’s possible here, and what’s not possible.”3 It’s no surprise, from this perspective, that the raging individualism of the 60’s led to the birth of a network infrastructure that was stateless (in the technical sense not the political), making routing decisions that locally optimized and retained its coherence even in the face of nodes that failed. Of course, these same characteristics provided a reliability that guaranteed a degree of performance in the face of disaster (recall one of the original design goals was to make a network that would function in the event of a nuclear strike). But the key attribute is that the rules by which the network forwards packets of data, therefore its behavior, are an instantiation of programming code.

In the last few years Congress has extended the copyright terms to the lifetime of the copyright holder plus 70 years (note in the early part of the last century it was a limited copyright to the original work and then valid for only 14 years) as well as moved to make it illegal for someone to break copyright protection code even if the purpose of its subversion is for legitimate fair use. At present, anything that is distributed is presumed to be copyright protected. It has led to the weird circumstances. You are a criminal if you break a copy protection scheme even if the scheme was misapplied to a work that was inappropriately protected in the first place. This seems like a view from Alice in Wonderland.

The power of technology when applied to these rules makes it possible to perfectly control the use and distribution of content. This is a power that property owners have never had in real space.

The real tragedy of this shrinking commons is the inability to build on good ideas to create a better future. We don’t think twice about our students buying a book to study the writing of Robert Heinlein, for example, to better understand his extraordinary gift for science fiction writing. If one of the students in a class on Heinlein turned around and wrote a story that was a direct rip-off of a Heinlein work, we’d prosecute him or her for plagiarism, as we should.

However, software is frequently distributed in compiled form, making the authorship of the underlying code impenetrable. We see the outcome of the steps executed, but not how the programmer accomplished it. When such compiled proprietary software dies, as when a company selling a proprietary software product closes its doors and g'es out of business, that code is lost forever. By the time the copyright restriction expires on the compiled software (the author’s life plus 70 years, or in the case of work for hire code, 90 years total), there won’t be any hardware in existence that will be able to run it.

Copyright law d'esn’t require the release of source code because it is thought that doing so would make it impossible to enforce the original copyright holder’s claims. Means of enforcing such restrictions, all be they imperfect, exist, and can be made better. But beyond that the effect of the enforcement of this rule results in the loss of creative work. Who is really gaining from this practice?

There is no incentive for a software maker to give its copyrighted code to the public. Unlike other physical property, donating software to a common public trust returns no tax advantages or other tangible benefits to the company. Rarely d'es a company contribute proprietary software to the open source community. Rare exceptions to this rule can be found. IBM, for example, foresaw the continuation of its proprietary graphics software Visualization Data Explorer as bad business. However, the company saw value in contributing to the research community. IBM released the source code to the public, that is, made it open source as OpenDX. To everyone’s surprise, it seems to have worked. Rather than die a slow death, OpenDX seems to have regained vitality and thrives in the open source community (www.research.ibm.com/dx and www.opendx.org).

But OpenDX is the exception, not the rule. A new effort to provide a conservancy for software has emerged to encourage the contribution of this form of intellectual property to a public commons. The effort, sponsored by the Center for the Public Domain (www.centerforthepublicdomain.org), helped to get started by Stanford Law School (http://lawschool.stanford.edu ), the Harvard Law School Berkman Center for Internet and Society (http://cyber.law.harvard.edu), and the Stanford Law School Center for Internet and Society (http://cyberlaw.stanford.edu), is called the Creative Commons (www.creativecommons.org). It is led by a board of directors including Larry Lessig (see www.creativecommons.org/aboutus/people#2 for a complete listing of the Creative Commons board and technical advisors).

Unfortunately for those who have not heard Prof. Lessig speak, his dedication to this work will remove him from the speaker’s circuit for the next couple of years. If you didn’t see him at this year’s Syllabus conference, you’ll have to wait until 2004. This is a truly important initiative. I urge to you look at their website learn what they are trying to do. Educate yourself to the issues, get involved in the debate, and if you are inspired by their example, find your own way to contribute to the effort.

Nothing could be more important.