Marketplace of Ideas or Tag Sale?

Marketplace of Ideas or Tag Sale?

A review of Lawrence Lessig's The Future of Ideas: The Fate of the Commons in the Connected World.


In 1813, as part of a correspondence with Isaac McPherson, Thomas Jefferson penned a mini-disquisition on the peculiar issues confronting patent law: "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."

Information, to borrow a more recent slogan, wants to be free. According to Lawrence Lessig's dazzling new book, The Future of Ideas, that freedom is under assault, despite recent technological developments that would seem to embody the Jeffersonian vision. "The digital world is closer to the world of ideas than to the world of things," Lessig writes. "We in cyberspace, that is, have built a world that is close to the world of ideas that nature (in Jefferson's words) created: stuff in space can 'freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition."

And yet the freedom of cyberspace and its capacity for mutual instruction is under fire. The very ethos of the web–a kind of organized anarchy, free of both government and private-sector control–has been gravely injured by recent events: changes in copyright law, changes to the underlying architecture of the net, changes in the competitive landscape of the digital economy. "The essence of the changes in the environment of the Internet that we are observing now are changes that alter the balance between control and freedom on the Net. The tilt of these changes is pronounced: control is increasing."

The word "control" itself is used advisedly. Lessig, now a professor at Stanford Law School, begins The Future of Ideas with a shout-out to his former colleague Andrew Shapiro, whose book The Control Revolution discussed the battle between control and freedom without necessarily predicting which side would win (or even which deserved to win). "Shapiro did not predict which future would be ours," Lessig explains. "Indeed, his argument was that bits of each future were possible, and that we must choose a balance between them. His account was subtle, but optimistic. If there was a bias to the struggle, he, like most of us then, believed the bias would favor freedom. This book picks up where Shapiro left off. Its message is neither subtle nor optimistic…. we are far enough along to see the future we have chosen. In that future, the counter-revolution prevails. The forces that the original Internet threatened to transform are well on their way to transforming the Internet."

Translated into another revolutionary's language, Lessig's is a story of all that is air melting into solid. But is our digital future–not to mention the present–really as grim as Lessig claims? Whether you accept the premise of Lessig's argument, The Future of Ideas confirms what his first book, Code and Other Laws of Cyberspace, originally promised: Lessig is one of the brightest minds grappling with the consequences of the digital world today, as deft and original with technical intricacies as he is with broad legal theory. He manages to breathe new life into seemingly exhausted economic ideas–his take on the tragedy of the commons is likely to entrance even the most jaded game theorist–and tell some fascinating stories along the way, on the freewheeling early days of the radio spectrum, or the distributed computing project that harnesses spare processing cycles from thousands of computers around the world to search for evidence of extraterrestrial life.

The Future of Ideas is also a deeply iconoclastic work, at least when measured against the standard assumptions of American politics. Lessig is sometimes cast as a trustbusting progressive after his brief involvement as "special master" in the Microsoft antitrust case (appointed by Judge Thomas Penfield Jackson to advise the court, he was subsequently removed after Microsoft protested that he was biased against the software giant). Lessig's positions can seem contradictory: The book is fundamentally a celebration of decentralized innovation, and yet it is deeply distrustful of too much power concentrating in the hands of the private sector. Lessig is no middle-of-the-road New Democrat: He's a radical critic who doesn't fit readily into any existing ideological camp. In a sense, you can see his politics as distinctly net-native, closest in spirit to those of open-source software, the semi-anarchic collective movement that engineered the now-legendary Linux operating system.

Open-source software projects tilt heavily in the direction of freedom: No one owns the underlying code behind Linux, and thousands have contributed to it. The software grows more sophisticated over time for three central reasons: (1) The ethos of the hacker community has a strong communitarian tradition that encourages contributions, which are rewarded only by the respect of one's peers, (2) modern software applications are modular enough to be built by committee, with thousands of dispersed participants chipping in their ideas, and (3) because the code base is openly shared with anyone interested in looking at it–unlike Microsoft's hidden Windows source code–interesting new ideas "freely spread from one to another over the globe," if not for the moral and mutual instruction of man, then at least for the improvement of his printer drivers.

This is the story of the triumph of the commons–free of both government and corporate control. Its principles animate nearly every page of Lessig's book: a mix of the libertarian's contempt for centralized control and the socialist's belief in the power of communal property. This would sound schizophrenic and impractical if it weren't for the empirical success of open-source projects like Linux, or the widely used web server Apache–or indeed the web itself, which was founded on nonproprietary standards. What are the politics of these new systems? It is not, according to Lessig, "the traditional struggle between Left and Right or between conservative and liberal. To question assumptions about the scope of 'property' is not to question property. I am fanatically pro-market, in the market's proper sphere…. The arguments I draw upon…are as strongly tied to the Right as to the Left…. Instead, the real struggle at stake now is between old and new."

The trouble, as Lessig sees it, is that the new is being challenged by the old. We are in the midst of a kind of digital-age Restoration, in which the old emperors of centralized control are returning to power after a brief but dizzying spell of Glorious Revolution. The free flow of code and information is being channeled once again in conventional directions, and the burst of innovation and media diversity that the Net produced over the past decade is regressing to the days of concentrated media oligarchies. "The promise of many-to-many communication that defined the early Internet will be replaced by a reality of many, many ways to buy things and many, many ways to select among what is offered," Lessig writes. "What gets offered will be just what fits within the current model of the concentrated systems of distribution."

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, 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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