Reclaiming A Commons
Reclaiming a Commons
Lawrence Lessig†
Draft 1.01
Keynote address,
The Berkman Center’s “Building a Digital Commons”
May 20, 1999
Cambridge, MA
[cc] Lessig. All rights reserved according to
<http://cyber.law.harvard.edu/cc>
† Jack N. and Lillian R. Berkman Professor for
Entrepreneurial Legal Studies, Harvard Law School.
Thanks to Cathy Cho for helpful comments on an earlier
draft.
Lessig: Building a Commons
Draft: June 21, 1999
“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,
which an individual may exclusively
possess as long as he keeps it to
himself; but the moment it is divulged,
it forces itself into the possession of
everyone, and the receiver cannot
dispossess himself of it. 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; as he who lites his taper at
mine, receives light without darkening
me. That ideas should freely spread
from one to another over the globe, for
the moral and mutual instruction of
man, and improvement of his condition,
seems to have been peculiarly and
benevolently designed by nature, when
she made them, like fire, expansible
over all space, without lessening their
density at any point, and like the air
in which we breathe, move, and have our
physical being, incapable of
confinement, or exclusive
appropriation. Inventions then cannot,
in nature, be a subject of property.”1
It’s been ten years since our victory in
the cold war was declared: ten years since
communism in Europe fell, and with it the
last European regime where Karl Popper was an
enemy, and Karl Marx a friend. We fought this
cold war over many generations, for an ideal
of the open society. For the ideal that
political and social society should be a
1 VI WRITINGS OF THOMAS JEFFERSON, 1790-1826, at 180-81
(H.A. Washington ed., 1854) (letter to Isaac
McPherson, August 13, 1813) (quoted in Graham v. John
Deere Co., 383 U.S. 1, 8-9 n.2 (1966)).
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place where ideas run free, where creativity
and progress is not directed from on top,
where no one controls your mind. We won that
war. The revolutions of 1989 were revolutions
in the name of that open society.
Two years ago, when I came to Harvard,
Charlie Nesson was talking about building a
commons in cyberspace. I had no idea what he
meant. He spoke about the need to support the
building of a space in cyberspace free from
control — open and free, and there for the
taking. It seemed to me just a little nuts.
What could he possibly mean? The idea sounded
old; the dreaming of a child of the sixties.
And anyway, why would anyone need to build a
commons? Cyberspace was not a limited space;
there would always be more to build. It is
not like the American continent was; we’re
not going to run into the Pacific Ocean some
day. If there’s something you don’t have in
this space, something you’d like to build,
then add it. I thought.
We are at a critical moment in the history
of our future and we are, in an important
sense, stuck. We are stuck, I suggest,
because most think as I did. Most imagine
this space to be infinitely expansible, and
hence perpetually unclosed. Most think, as
the world did a decade ago, that the open
society has won and that the closed society
has now scampered off stage; and most think
that Jefferson is right — that nature
protects ideas and that nothing can bottle
them up.
But Jefferson was wrong. And because he
was wrong, the closed society is not dead.
And because the closed society is not dead,
Charlie Nesson is right. We are at a critical
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moment in the history of our future because
we are now witnessing the defeat of what 2000
years had built — the defeat of the open
society, the triumph of the closed society,
and the destruction of an intellectual
commons. And we are witnessing this defeat at
the hands of an enemy who has coopted the
rhetoric of our past—the rhetoric of freedom
that was organized under this ideal of
property.
Property.
Jefferson loved property. Jefferson loved
small farms as property. He loved the
production of the small farmer; the world
where everyone was a farmer, and the pride
that would go with the management of a small
farm.
The open society loved property. Our
battle against communism had as its ally,
commerce. Freedom would come, libertarians
said, through free markets. Open markets
meant open societies. Property freely traded
would mean human rights regularly respected.
Property was the engine of freedom; it would
be the power that would resist the tyranny of
a state. And there was little danger from
this engine of freedom itself; it could not
get out of control; for as Jefferson taught
us, “Inventions then cannot, in nature, be a
subject of property.”
But Jefferson, again, was wrong. Or partly
wrong. Not wrong in his soul, for the one
part of American constitution that Jefferson
most worried over was the part that gave
Congress the power to create monopolies in
ideas, and monopolies in expression — the
copyright and patent clauses. In letters to
Madison, Jefferson harangued the founder
Madison about the dangers of monopoly,
especially the monopoly over ideas. But
Jefferson was a nut in his time — a respected
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and powerful nut, but certainly mainstream.
And Madison was a dealmaker. Madison knew
that we were still too mechantilist to give
up the idea of state sponsored monopolies. So
he convinced Jefferson that a small
compromise was necessary. He convinced
Jefferson that we could sell this tiny bit of
our founding soul and nothing would happen.
And in the end, Jefferson was quieted. He
thought the First Amendment would restrict
the copyright clause; he thought nature would
protect ideas; and he thought that if he was
the first patent commissioner, then he could
set a precedent that would guide the office
for the indefinite future. (Which for
Jefferson, was not very long. Jefferson
believed in perpetual revolution; he believed
in a bit of blood every 19 years; his horizon
was short.)
But in his compromise, Jefferson suffered
an illusion of “is-ism.” That nature would
protect ideas from property; that nature
would assure no one could control the flow of
air; that nature would guarantee ideas would
expand like fire without losing their density
at any one point — these were features of the
world that Jefferson knew and he assumed that
they were features of any world that anyone
could know.
But they are not.
We have just entered the era where
Jefferson’s picture proves false. Not in a
technical sense or in a literal sense, but in
any sense that Jefferson would have meant it.
We have entered an era when nature doesn’t
protect us — when, if we want ideas to flow
freely, when if we want, as he said, ideas to
flow “from one to another over the globe, for
the moral and mutual instruction of man, and
improvement of his condition,” we have to
make it that way. We have entered a time when
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nature can be architected to control ideas
and to control their spread; when nature can
be architected to defeat the free flow of
information; when nature can be architected
to close the open society. And all this
closing can be done in the name of property.
We have entered a time when the code of
our time can be written such that people who
own intellectual property have the power —
through law and through this code — to close
off, to stop, to own an idea, and to make
criminal, or at least extremely difficult,
any use of that idea beyond the owners
permission. We have entered a time when we
can construct the world against nature.
How?
The last few years of internet politics
has produced a lot of laws and the following
slogan: The internet should be left to take
care of itself; that government can do no
good there. This slogan was given to us,
surprising as this might seem, by a
democratic president, through the words of
his architect for national health care — Ira
Magaziner. And so for the last few years, we
have lived in this blissful state where we
had this illusion that the net was taking
care of itself free from government’s
influence.
But of course, it is not true that
government has stayed out. It is not true
that the government has not moved to regulate
the internet. The last few years has seen an
extraordinary expansion of intellectual
property rights, from the extension of the
copyright term to just about a billion years,
to the criminalization of code that might
circumvent copy protection (even if that
circumvention would have been for the
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purposes of fair use), to the unbelievable
expansion of patent protection, through the
birth of a doctrine called the business
process patent, to the likely passage this
congress of a data base protection bill.
This is government regulation on a massive
scale. And it is regulation that is producing
an extraordinary power to own and hence
control ideas. And when tied, as it will be,
to technologies that support it, it will
produce a cyberspace that will defeat
Jefferson’s nature — that will make it
possible perfectly to control the use and
distribution of content. We are seeing the
laying of a foundation for our future that
will give to holders of “intellectual
property” a power over that property that
they have just never had. This will be a
power that Jefferson thought impossible; a
power that is wildly disproportionate to the
balance that intellectual property was always
to be; a power that will make it possible to
close the society that we now call open.
The power through property to produce a
closed society — where to use an idea, to
criticize a part of culture, to quote “Donald
Duck,” one will need the permission of
someone else. Hat in hand, deferential,
begging, a society where we will have to ask
to use; ask to criticize; ask to deploy; ask
to read; ask to browse; ask to do all those
things that in a free society — in a society
with an intellectual commons, in a society
where no one man, or no corporation, or no
soviet, controls — one takes for granted.
We are building the foundation for the
society we thought we defeated 10 years ago.
I want to describe in real terms, with
real examples, just what I mean. But before I
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do, I want to note what increasingly strikes
me as the most amazing feature of this
change. Where is the ACLU? What’s most
amazing about this change — once you see it,
and its potential — is that the leading civil
rights group in America doesn’t seem to get
it. The ACLU is off fighting the important
battle over pornography in cyberspace.
Extraordinary resources are devoted to
defeating Congress’ attempts (now two, but no
doubt there will be more) to keep porn away
from kids. And while I’m all for defeating
COPA or the CDA, or whatever “C” word they
come up with the next time around, I am
completely baffled about the priorities.
Sure, civil liberties will be compromised if
COPA stands; sure, cyberspace will be
different if porn is not available at every
turn. But compared to the threat that this
enclosure movement presents? Compared with
the threat to free speech that the
propertization of ideas presents?
I have been told that there is an obvious
answer to this question about priorities —
the cynic’s answer. Follow, the cynic would
say, the money. Playboy might be our ally in
the fight to keep speech free on the net;
they won’t be our ally in the fight against
excessive copyright.
But I don’t buy cynical explanations.
Something more is going on. The better answer
looks not to evil motives; the better answer
is a cultural deficit. The better explanation
is that we as a culture don’t see what
Charlie was talking about two years ago when
he founded this Center. The better
explanation is that we have been taken in by
a bad-Chicago rhetoric that now gets whored
about by content holders. We don’t see a
place for an intellectual commons, because we
can only see a place for “property.”
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Now this is bad Chicago rhetoric, because
even Chicago doesn’t argue for the
propertization of ideas and content that this
new world will make possible. No one —
certainly not I — is against intellectual
property properly conceived. No one — and
certainly not I — is against a limited but
effective right of authors and inventors to
control what they write or invent. The battle
here is not against IP; the battle is against
the end of balance in IP. It is against IP at
an extreme, not IP in its historical form. I
am arguing against something new, not
rearguing the battle that Jefferson lost. For
in my view, Madison had the better of the
argument; some monopoly is needed. But the
question is not whether some is needed; the
question is how much.
So to get a sense of the extreme that we
are building now — to see just how different
it is from the regime we had before —
consider this:
Twenty five years ago, only companies like
the New York Times could be a publisher; only
companies like IBM could produce software;
only companies like Sears could sell lots and
lots of things. This was the “nature” of life
in the 70s — terrible disco and an economic
reality that meant big was all we could have.
The economic constraints of real space life
were such that only the big guys controlled.
Nature made it so, the economists said, and
you can’t fool nature.
Dawn broke, Ronald Reagan said, in the
1980s. It was morning in America. Dawn broke
on an era where power — here computing power
— was given back to ordinary people. This was
the PC revolution, where a boy named Bill
could outwit the titan IBM and transform a
tiny bit of second-rate code into the
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dominant operating system on fastest growing
computer platforms in the world. Power
shifted because the economics had changed, as
power became logic-embedded in silicon.
The 1990s were the 1980s, squared. As
ordinary users became increasingly connected,
the internet began to deliver on the
extraordinary promise that the image of Bill
Gates beating IBM created. It made possible a
world where more than the New York Times
could publish, where software could be made
somewhere other than at IBM, and where
anyone, not only Sears could sell. The
internet removed all the barriers to entry
that had produced this controlled world of
bigness. It removed the structures that made
it natural that there be just a few who
decided what the rest of us would see.
Now the thing to understand — the point to
get, the idea that Charlie saw, the argument
— is this. The laws that Congress is writing
— call that east coast code — and the laws
that coders are writing — trusted systems,
copyright management schemes, authenticated
interactions, or west coast code for short —
these two types of code together are
rebuilding the world of the 1970s. These two
types of code in conjunction are recreating
the barriers to entry that the internet had
removed. They are making it again the case
that only the New York Times, or its 21st
century equivalent, Ted Turner, and Sears, or
its 21st century equivalent, Disney, and IBM,
or its 21st century equivalent — well, let’s
let that go — control what gets built, or
said, or sold in this space.
How?
All speech in cyberspace is “published”
which means its all putatively at the hands
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of copyright law.2 When copyright law is
forgiving, when penalties are slight, when
enforcement is lax, when enforcement is
expensive — when all that is true, then it
doesn’t matter that lots is within the domain
of copyright law.
But when west coast and east coast code
changes so as to make it easier to enforce
copyright law — to make it a felony to breach
copyright law, or the law of west coast code,
to make it cheap to track the offender — then
the fact that everything is within the
possible domain of copyright law begins to
matter a lot. It becomes extremely important.
All speech in this space that isn’t purely
original (and what speech have we heard that
is) is now speech within the domain of
control of someone else.
But the IP maven will say, yes but even if
everything is “published,” not everything can
be copyrighted. Copyright requires some
originality. Not everything I write is
“original.”
True. And we have a Supreme Court case,
Feist, which importantly establishes this
important principle. But Congress is
fevorously trying to work around this Supreme
Court case. It is fevorously working to pass
a database protection bill that will turn the
uncopyrightable into the protectable. Data as
property. Facts, controlled. A felony to
“use” the data protected by the database
protection bill. And if successful, then
2 Why this should be I am not sure. It seems to me
that we need a much more convincing argument to show
why every word I utter in cyberspace is considered
“published” yet every word I utter in real space is
not (only those fixed in a tangible medium in real
space are published). It is just an accident of design
that cyberspace fixes everything; why that accident
should determine the law is unclear to me.
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again this fact that everything is within the
domain of Congress’s law becomes all the more
pressing. To publish, you must be the New
York Times, or Disney, because only the New
York Times or Disney could afford to
negotiate the rights. Every use becomes a
subject of negotiation of rights; and when
this is true, only those who can afford
negotiators will be able to use.
“Rights.” Negotiate the rights. Because
here is the first key to what a commons
means. It means the right to speak, or to
publish, or to produce, without having to get
the permission of someone else in advance. It
means a world without prior restraint; where
there is a space to speak which depends upon
the will of no one else.
To speak, and also to produce. To invent,
or to create. For it is here that the second,
and less well known threat to a commons in
cyberspace is emerging. And this one, I fear
in some sense, is worse than copyright.
Patents. A patent is a government
regulation. Some bureaucrat in Washington
decides whether your invention is novel
enough to deserve a 20 year government
monopoly. To know this, the examiner must
examine the other inventions out there. The
examiner must look to see whether someone
else had the idea first. That’s called a
check of prior art. Only if your idea is
truly novel will you have the right to a
patent.
At least that’s the way things are in
theory. In practice, the world is very
different. In practice, examiners spend less
than 8 hours on average checking prior art.
In practice, all the incentives are in favor
of granting a patent, not denying it. The
examiner gets a bonus for granting the
monopoly; no incentive for finding that, in
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fact, no monopoly should be granted. The
scales are tilted in favor of handing out
monopolies. We are paying bureaucrats money
to give hand-out, state-protected monopolies.
But, the maven says, so what? If the
patent is bad, you can challenge it. If it is
bad, it will be declared invalid.
True, if you have on average 1.2 million
dollars to challenge a patent, you can
challenge it, and you may well win. But who
exactly would have that incentive? Forget the
cost: if you win, its not as if you get the
patent. If you win, no one gets the patent.
The idea is returned to the commons. And who
benefits then?
The reality is that these monopolies are
important barriers to entry. Big companies
collect patents not for the purpose of making
money from licenses; big companies collect
patents to have something to trade. If it
turns out they are infringing, they have
something cheap to give away. But only they
have something cheap to give away. If you
start up a business on the net, run afoul of
some patent, even if in reality is a bad
patent, your choices are limited: pay or
stop.3
3 A recent study suggested, for example, that the
costs of securing a license to design a new integrated
chip would be approximately $100 million. In response
to this point, a member of the audience suggested this
wasn’t such a large amount — after all, it costs, he
suggested, about $1 billion to build a chip factory,
so the IP rights would be just 10%. In my view, 10% on
the margin is significant. But in any case, it seems
to me to understate the constraint. One need not build
a chip factory in order to produce a newly designed
chip. If production lines at existing factories can be
rented, then the constraint of $100 million before
design can begin is still quite significant.
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We are recreating the 1970s. We are
creating the world where only the big can
produce. And we are recreating it through
law. Laws, not economics; legislatures, not
nature.
We need a way to resist this. We need a
way to show just why this obsession with
property is not the property our framers had
in mind. We need a way to show that it will
recreate the closed society. We need a way to
show that IP has always been understood to
mean balance between incentives and the
commons. We need a way, as Jamie Boyle puts
it, to build an environmental movement within
this cause. We need some way to get people to
see that the resistance to this
propertization is not communism.
But we live at a time when we don’t have
those resources. We live in a time when the
rhetoric is not there. We live in a time when
even Barney Frank says about database
protection, Why should I defend the right of
someone to “steal” information.
“To steal.” “An idea.” Ideas, contra
Jefferson, apparently are the stuff of
property. For only property can be stolen.
We need a way to counter this emerging
imbalance in thought. The Berkman Center’s
Open Society project is a small contribution
to that need. Our aim is to build links — to
get people to see how in our past we have
always understood the value of openness. Not
just in Stallman’s Free Software Movement,
not just in the Open Source Movement, but
throughout our tradition, this is our past.
And so we have launched a range of
projects to stir up this idea that the
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commons is the open society. Challenging the
copyright extension bill, building open code
for education, pushing open governance
projects, funding open research, supporting
open source: This is an effort not to coopt,
but to argue in support. This is an effort to
get people to see that there is an undeniable
place for a commons in a free society, and
that commons will only exist if it is built.
It is an effort to do what Charlie said to
do two years ago. It’s my nature to be
pessimistic and dark about this future;
forgive me for that. It is Charlie’s
perpetual nature to be optimistic and
hopeful. We should be thankful for that. For
when we look back on this era a generation
from now — if we look back freely and openly
— it will be the inspiration of the ideas of
the Jeffersons like Nesson that will still
inspire. My job in this opening is not to
inspire. It is to scare.
Let this day open the open society again.
In all its possible facets.
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