Free Culture by Lawrence Lessig (ereader iphone .TXT) 📖

extremism that now dominates this debate fits with ideas that seem natural, and that fit is reinforced by the RCAs of our day. They wage a frantic war to fight "piracy," and devastate a culture for creativity. They defend the idea of "creative property," while transforming real creators into modern-day sharecroppers. They are insulted by the idea that rights should be balanced, even though each of the major players in this content war was itself a beneficiary of a more balanced ideal. The hypocrisy reeks. Yet in a city like Washington, hypocrisy is not even noticed. Powerful lobbies, complex issues, and MTV attention spans produce the "perfect storm" for free culture.

 

In August 2003, a fight broke out in the United States about a decision by the World Intellectual Property Organization to cancel a meeting.6 At the request of a wide range of interests, WIPO had decided to hold a meeting to discuss "open and collaborative projects to create public goods." These are projects that have been successful in producing public goods without relying exclusively upon a proprietary use of intellectual property. Examples include the Internet and the World Wide Web, both of which were developed on the basis of protocols in the public domain. It included an emerging trend to support open academic journals, including the Public Library of Science project that I describe in the Afterword. It included a project to develop single nucleotide polymorphisms (SNPs), which are thought to have great significance in biomedical research. (That nonprofit project comprised a consortium of the Wellcome Trust and pharmaceutical and technological companies, including Amersham Biosciences, AstraZeneca, Aventis, Bayer, Bristol-Myers Squibb, Hoffmann-La Roche, Glaxo-SmithKline, IBM, Motorola, Novartis, Pfizer, and Searle.) It included the Global Positioning System, which Ronald Reagan set free in the early 1980s. And it included "open source and free software."

The aim of the meeting was to consider this wide range of projects from one common perspective: that none of these projects relied upon intellectual property extremism. Instead, in all of them, intellectual property was balanced by agreements to keep access open or to impose limitations on the way in which proprietary claims might be used.

From the perspective of this book, then, the conference was ideal. 7 The projects within its scope included both commercial and noncommercial work. They primarily involved science, but from many perspectives. And WIPO was an ideal venue for this discussion, since WIPO is the preeminent international body dealing with intellectual property issues.

Indeed, I was once publicly scolded for not recognizing this fact about WIPO. In February 2003, I delivered a keynote address to a preparatory conference for the World Summit on the Information Society (WSIS). At a press conference before the address, I was asked what I would say. I responded that I would be talking a little about the importance of balance in intellectual property for the development of an information society. The moderator for the event then promptly interrupted to inform me and the assembled reporters that no question about intellectual property would be discussed by WSIS, since those questions were the exclusive domain of WIPO. In the talk that I had prepared, I had actually made the issue of intellectual property relatively minor. But after this astonishing statement, I made intellectual property the sole focus of my talk. There was no way to talk about an "Information Society" unless one also talked about the range of information and culture that would be free. My talk did not make my immoderate moderator very happy. And she was no doubt correct that the scope of intellectual property protections was ordinarily the stuff of WIPO. But in my view, there couldn't be too much of a conversation about how much intellectual property is needed, since in my view, the very idea of balance in intellectual property had been lost.

So whether or not WSIS can discuss balance in intellectual property, I had thought it was taken for granted that WIPO could and should. And thus the meeting about "open and collaborative projects to create public goods" seemed perfectly appropriate within the WIPO agenda.

But there is one project within that list that is highly controversial, at least among lobbyists. That project is "open source and free software." Microsoft in particular is wary of discussion of the subject. From its perspective, a conference to discuss open source and free software would be like a conference to discuss Apple's operating system. Both open source and free software compete with Microsoft's software. And internationally, many governments have begun to explore requirements that they use open source or free software, rather than "proprietary software," for their own internal uses.

I don't mean to enter that debate here. It is important only to make clear that the distinction is not between commercial and noncommercial software. There are many important companies that depend fundamentally upon open source and free software, IBM being the most prominent. IBM is increasingly shifting its focus to the GNU/Linux operating system, the most famous bit of "free software"--and IBM is emphatically a commercial entity. Thus, to support "open source and free software" is not to oppose commercial entities. It is, instead, to support a mode of software development that is different from Microsoft's.8

More important for our purposes, to support "open source and free software" is not to oppose copyright. "Open source and free software" is not software in the public domain. Instead, like Microsoft's software, the copyright owners of free and open source software insist quite strongly that the terms of their software license be respected by adopters of free and open source software. The terms of that license are no doubt different from the terms of a proprietary software license. Free software licensed under the General Public License (GPL), for example, requires that the source code for the software be made available by anyone who modifies and redistributes the software. But that requirement is effective only if copyright governs software. If copyright did not govern software, then free software could not impose the same kind of requirements on its adopters. It thus depends upon copyright law just as Microsoft does.

It is therefore understandable that as a proprietary software developer, Microsoft would oppose this WIPO meeting, and understandable that it would use its lobbyists to get the United States government to oppose it, as well. And indeed, that is just what was reported to have happened. According to Jonathan Krim of the Washington Post, Microsoft's lobbyists succeeded in getting the United States government to veto the meeting.9 And without U.S. backing, the meeting was canceled.

I don't blame Microsoft for doing what it can to advance its own interests, consistent with the law. And lobbying governments is plainly consistent with the law. There was nothing surprising about its lobbying here, and nothing terribly surprising about the most powerful software producer in the United States having succeeded in its lobbying efforts.

What was surprising was the United States government's reason for opposing the meeting. Again, as reported by Krim, Lois Boland, acting director of international relations for the U.S. Patent and Trademark Office, explained that "open-source software runs counter to the mission of WIPO, which is to promote intellectual-property rights." She is quoted as saying, "To hold a meeting which has as its purpose to disclaim or waive such rights seems to us to be contrary to the goals of WIPO."

These statements are astonishing on a number of levels.

First, they are just flat wrong. As I described, most open source and free software relies fundamentally upon the intellectual property right called "copyright." Without it, restrictions imposed by those licenses wouldn't work. Thus, to say it "runs counter" to the mission of promoting intellectual property rights reveals an extraordinary gap in under- standing--the sort of mistake that is excusable in a first-year law student, but an embarrassment from a high government official dealing with intellectual property issues.

Second, who ever said that WIPO's exclusive aim was to "promote" intellectual property maximally? As I had been scolded at the preparatory conference of WSIS, WIPO is to consider not only how best to protect intellectual property, but also what the best balance of intellectual property is. As every economist and lawyer knows, the hard question in intellectual property law is to find that balance. But that there should be limits is, I had thought, uncontested. One wants to ask Ms. Boland, are generic drugs (drugs based on drugs whose patent has expired) contrary to the WIPO mission? Does the public domain weaken intellectual property? Would it have been better if the protocols of the Internet had been patented?

Third, even if one believed that the purpose of WIPO was to maximize intellectual property rights, in our tradition, intellectual property rights are held by individuals and corporations. They get to decide what to do with those rights because, again, they are their rights. If they want to "waive" or "disclaim" their rights, that is, within our tradition, totally appropriate. When Bill Gates gives away more than $20 billion to do good in the world, that is not inconsistent with the objectives of the property system. That is, on the contrary, just what a property system is supposed to be about: giving individuals the right to decide what to do with their property.

When Ms. Boland says that there is something wrong with a meeting "which has as its purpose to disclaim or waive such rights," she's saying that WIPO has an interest in interfering with the choices of the individuals who own intellectual property rights. That somehow, WIPO's objective should be to stop an individual from "waiving" or "dis-claiming" an intellectual property right. That the interest of WIPO is not just that intellectual property rights be maximized, but that they also should be exercised in the most extreme and restrictive way possible.

There is a history of just such a property system that is well known in the Anglo-American tradition. It is called "feudalism." Under feudalism, not only was property held by a relatively small number of individuals and entities. And not only were the rights that ran with that property powerful and extensive. But the feudal system had a strong interest in assuring that property holders within that system not weaken feudalism by liberating people or property within their control to the free market. Feudalism depended upon maximum control and concentration. It fought any freedom that might interfere with that control.

As Peter Drahos and John Braithwaite relate, this is precisely the choice we are now making about intellectual property.10 We will have an information society. That much is certain. Our only choice now is whether that information society will be free or feudal. The trend is toward the feudal.

When this battle broke, I blogged it. A spirited debate within the comment section ensued. Ms. Boland had a number of supporters who tried to show why her comments made sense. But there was one comment that was particularly depressing for me. An anonymous poster wrote,

George, you misunderstand Lessig: He's only talking about the world as it should be ("the goal of WIPO, and the goal of any government, should be to promote the right balance of intellectual- property rights, not simply to promote intellectual property rights"), not as it is. If we were talking about the world as it is, then of course Boland didn't say anything wrong. But in the world as Lessig would have it, then of course she did. Always pay attention to the distinction between Lessig's world and ours.

I missed the irony the first time I read it. I read it quickly and thought the poster was supporting the idea that seeking balance was what our government should be doing. (Of course, my criticism of Ms. Boland was not about whether she was seeking balance or not; my criticism was that her comments betrayed a first-year law student's mistake. I have no