Lessig cites a number of recent developments to support his grim prognosis, including the increased role of cable companies in the net economy:

As the Internet moves from telephone wires to cable, which model should govern? When you buy a book from Amazon.com, you don't expect AOL to demand a cut. When you run a search at Yahoo!, you don't expect your MSN network to slow down anti-Microsoft sites. You don't expect that because the norm of neutrality on the Internet is so strong...
      But the same neutrality does not guide our thinking about cable. If the cable companies prefer some content over others, that's the natural image of a cable provider. If your provider declines to show certain stations, that's the sort of freedom we imagine it should have...
      So which model should govern when the Internet moves to cable. Freedom or control?

Lessig is not optimistic about the cable companies' ability to adapt to the open-access neutrality that has been a founding principle of the Internet to date--particularly when those companies are part of massive content empires like AOL Time Warner. Lessig is typically persuasive in his argument against these controlled systems, an argument that he brilliantly mounts not by thundering against "evil" corporations but rather by pointing to the success of previous open systems whose existence we now take for granted. "When the United States built its highway system, we might have imagined that rather than fund the highways through public resources, the government might have turned to Detroit and said, Build it as you wish, and we will protect your right to build it to benefit you. We might then imagine roads over which only American cars can run efficiently, or exits and entrances that tilt against anything built outside Detroit." Instead, the government built a highway system that was open to all users and (almost all) uses--a foundation for commerce and recreation that was biased only in the sense that it "tilted" against mass transport. The Net was an equivalently open platform, engendering a thousand unforeseen uses--everything from sharing music files to creating hypertext archives of public domain books to hosting online auctions for Pez dispensers and million-dollar artworks. The strength of the system lay in the fact that there were no gatekeepers deciding which were approved activities and which weren't.

Lessig is particularly concerned about the resurgence of gatekeepers in the domain of copyright law. The past few years have witnessed a dramatic expansion in the legal rights granted to copyright holders: Books can now take more than a hundred years to enter the public domain, and entertainment industry organizations like the Motion Picture Association of America and the Recording Industry Association of America have won a number of high-profile lawsuits--most notably against Napster and against the hackers who broke the DVD compression scheme and distributed it over the web. Lessig's fear is that the great connectedness produced by the Net may lead to a system of near-perfect copyright control, as all appropriations of intellectual property can theoretically be tracked, and unlawful appropriations prohibited. Jefferson's "freely spreading ideas" starts to look more like Foucault's take on Bentham's panopticon, with every bitstream monitored for pilfered data. "The content layer--the ability to use content and ideas--is closing," Lessig writes. "It is closing without a clear showing of the benefit this closing will provide and with a fairly clear showing of the harms it will impose.... [It is] mindless locking up of resources that spur innovation. Control without reason."

The Future of Ideas succeeds marvelously at its primary task, which is to persuade the reader of the virtues of a balance between control and freedom in this new world, and of the importance of understanding how technological changes can unintentionally alter that balance. (In this respect, the book builds on the argument of Code, which demonstrated the ways in which software architecture possesses the force of law in digital environments.) There may be no thinker today grappling more tenaciously with the legal issues unleashed by the digital revolution, and the book's maverick positioning on the conventional political spectrum should make it a landmark work for that reason alone. Ever since the open-source software movement entered mainstream culture, its followers have been wondering about what a larger political philosophy based on its values would look like. The Future of Ideas is the first significant step in the formulation of that philosophy.

That said, it's hard to read a book that makes such bold claims about such a dynamic and complex field, and not pose a few counterarguments, even if they run against the grain of your habitual assumptions about the world. I've long shared Lessig's amazement at the explosion of ideas and new voices unleashed by the Net over the past decade, but because his argument rests so heavily on this premise--the uncontrolled nature of the Net's underlying architecture as an unparalleled engine for innovation--I found myself questioning the assumption the more I heard it repeated. Two potential objections spring to mind. First, the Internet proper is more than three decades old; its open protocols have been evolving steadily since then, and yet compared with other high-tech industries over that period--personal computers, semiconductors, nontelecom software--its overall rate of innovation was not particularly noteworthy until the mid-1990s, when the web took off. The period that followed was without question one of tremendous innovation, but it was also a period bankrolled by an unprecedented infusion of venture capital, which fueled both the exploration of just about every conceivable web-based activity and the mass adoption of the medium itself. Now, it may well be that the capital influx was a secondary effect, and the primary cause of the explosion was the Net's open protocols. But then why did it take so long to blossom?

The distinction wouldn't matter so much if Lessig didn't point to the Net's track record of innovation so often in his argument for maintaining--or replicating--its distinctive balancing act between too much control and too much freedom. Consider another area of software development: applications created for the DOS/Windows platform over the past ten years. In areas where Microsoft doesn't control the market with its own products--pretty much everything other than the core applications in MS Office--the Windows-based software industry has produced a staggering number of programs in a short amount of time, including whole new genres of software: sales-force-automation applications, accounting packages, video-editing tools, games. The Windows software ecosystem is broad enough to support huge corporate giants with millions of customers, along with niche producers selling to tiny markets. (It has also managed to cultivate something that the web has had trouble with thus far: profitable companies.) And yet Windows is the epitome of a closed architecture, its source code controlled by a mighty centralized authority and defended by a phalanx of lawyers. So where does that innovation come from? It's worth remembering that the Napster client software itself, while inconceivable without the underlying connectivity offered by the Net, was nonetheless originally written for the Windows platform.

Napster brings us back to the question of Lessig's pessimism, and his vision of a control counterrevolution. Nowhere is Lessig's dark outlook more convincing than in his survey of recent changes to copyright law, and yet even here the dystopian tone seems unwarranted: "The content layer--the ability to use content and ideas--is closing." Closing on what time scale? Compare my ability to copy books, music tracks and video clips today with what it was just five years ago. Electronic books barely existed, and so copying books meant a laborious trip to Kinko's; borrowing music from a friend meant swapping cassette tapes; and the idea of high-quality video residing on your hard drive was laughable, given the slower CPUs and smaller hard drives of the day. Even after the shutdown of Napster, I have access to terabytes of music files via the more distributed--and thus harder to shut down--Gnutella service, and soon those Napster-descendants will be serving full-length movies as well. The law may be cracking down on the technological explosion that made all this possible, and thus in some sense it might be true to say that "control is increasing," particularly if you're trained as a law professor. But on the ground--or perhaps it's better to say in the ether--the technology is still outmaneuvering the counterrevolutionaries. That's not cause to ignore Lessig's warnings, or ignore the remarkably sophisticated model of technopolitics that he develops in The Future of Ideas. But perhaps it's reason to hope that the forces of freedom--if they have technology on their side--are still stronger than the forces of control.

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