TCS Daily


Pirates Near the Caribbean?

By Michael Rosen - June 3, 2005 12:00 AM

Among the exponents of the "digital freedom" and "free culture" movements, few are more renowned or articulate than Stanford Law School's Lawrence Lessig. Lessig's star has risen high over the past decade - he even appeared on NBC's The West Wing last season, played by Christopher Lloyd - as his expertise at the intersection of the Internet, digital technology, privacy, and creativity has become increasingly in demand. His friend-of-the-court brief in the landmark Supreme Court copyright case of MGM v. Grokster has become an instant classic among his followers.

In a recent article in MIT's Technology Review, Lessig journeys to the World Social Forum in Brazil, where he partakes in a veritable feast of free culture. He conjures up a Manichean battle between those who would freely spread content - defined to include software, media, or other cultural expression - and those who would obstruct its transmission. While Lessig's presentation transcends the simplistic idea that "information wants to be free" - a quote often but wrongly attributed to him, it nevertheless hyperbolically depicts a creeping copyright regime that threatens to swallow whole the very concept of creativity.

In a cogent and persuasive response, University of Chicago Law School professor Richard Epstein ably disposes of much of Lessig's argument (Lessig offers a rebuttal, too), in particular the tired rehearsal of the evils of digital rights management (DRM), a technology that grants creators integrity in their work and offers consumers differentiation in price, a là iTunes and Napster (the new, legal one). Still, there are a few features of Lessig's essay worth focusing on.

First, Lessig spends much of his time rehashing many of the usual canards about intellectual property rights. He contends that "[n]o society has ever imposed the level of control that the proprietary culture of digital technologies and DRM would enable." True, but at the same time, no society has ever enjoyed the level of technical control over media, its replication, and its manipulation that the digital revolution has bestowed. Yes, up until the past, say, 50 years, no government has ever abridged the freedom of aboriginal Amazonians to download and repackage software; but up until the past few decades, no aboriginal Amazonian had ever heard the words "download" or "software."

His discussion of "remixing culture" likewise fails to rise above the usual exorbitant praise for "sampling" and the attendant mourning over the lost art of making art from others' art. Of course, throughout history creative artists have "stood on the shoulders" of their predecessors, drawing inspiration from older works. But never before could artists use and manipulate perfect copies of prior creations with such ease, let alone weaving "new" compositions entirely out of miniscule snippets of older ones. In fact, many contemporary musical artists who once praised sampling now grow incensed when younger performers dare to sample their (once fresh, now dated) recordings.

But underneath the simplistic extolling of "free culture" lurks an important truth: despite pooh-poohing from the business community, free goods and services per se need neither be disparaged nor feared. If creators of intellectual property are willing to experiment with lowering or eliminating the prices of their wares in an effort to compete with proprietary IP, nothing should stop them. So long as neither the government nor bad (private) actors infringe the rights of those who wish to sell their stuff at whatever price they desire, vendors should embrace competition with free goods and services.

For instance, I am a fool for Wi-Fi, especially free Wi-Fi. In fact, I'm perfectly willing to venture to a café serving dreadful coffee, so long as I can get online without paying. At the same time, I would prefer that Starbucks offer free Wi-Fi rather than its T-Mobile hot-spots (which run around $10 per day), but Big Green has apparently decided it can milk yet more money from its willing customers by charging for Internet access.

Now, perhaps smaller chain or independent coffeehouses offering free Wi-Fi are doing so out of loving-kindness for humanity, or, more likely, they're providing an alternative online caffeination experience that they believe can woo customers from Starbucks. In either case, their experiment is most welcome; if they eat into Starbucks's bottom-line, or even if they just hold their own, the smaller cafés will have demonstrated that a free good can fairly and competitively coexist in the marketplace with a fee-based alternative. But it would surely be inequitable for an intrepid (and unethical) user to hack the T-Mobile signal and offer free (pirated) access to all comers; it would likewise be inefficient and unjust to mandate by law that Starbucks offer free Wi-Fi.

In general, then, there's nothing wrong with a little competition. If free goods and services offer a workable economic model, then by all means should they challenge and even overtake their paid counterparts. If artists, inventors, programmers, and their ilk determine that, in a free market, it's worth their while to disseminate their goods more cheaply or even for free, then neither economic nor ethical reasons foreclose them from doing so.

And ultimately, Lessig implicitly recognizes that such a voluntary abdication of intellectual property rights can be the only morally (and profitably) acceptable path out of the conundrum - if a conundrum it is - posed by the digital revolution. Unlike many opponents of the concept of IP, hell-bent on eradicating copyright, patent, or trademark protections through a grisly combination of piracy, nationalization, and outright theft, Lessig believes - truly believes - that free culture and free software will replace their proprietary counterparts in the marketplace. Linux will outstrip Windows, homemade Brazilian music videos will obviate MTV content, and the like.

Objectively, this seems unlikely, although not impossible. But more importantly Lessig seems content to allow free and proprietary media to compete on a relatively level playing field. Rather than urge developing countries simply to expropriate American IP, he encourages Brazil -- mainly via his hero, Culture Minister Gilberto Gil -- to employ subsidies, grants, and other means to promote free culture. These measures, at the very least, would not strip intellectual property owners of their right.

Fortunately, Lessig's suggestions come at a time and place where IP rights have come under fire, especially in the realm of patented pharmaceuticals. On Wednesday, Brazil's legislature approved a measure that would suspend patents on AIDS drugs, thus enabling competitors to create cheaper generic drugs and thereby eroding incentives to develop new drugs. This bill -- the result of intense international and domestic pressure that has already coerced American pharma companies into unilaterally slashing the prices of patented drugs -- meshes nicely with socialist Brazilian President Luis Inacio Lula da Silva's approach to American IP rights: regulate or eliminate. Perhaps Lessig's efforts will gain the attention of bureaucrats in Brasilia, although I wouldn't expect the professor's denunciation of the Brazilian legislature anytime soon.

In the end, as Lessig notes, "the economy of free software is still an economy. It produces wealth; it inspires growth; it spreads services broadly within a society...And literally billions of dollars have been invested to make it flourish." If Lessig's goal is to co-opt software pirates and depredatory governments into joining battle with proprietary content providers on a fair economic battlefield, then his efforts are highly commendable. Quixotic, perhaps, but commendable nonetheless.

Michael M. Rosen, a TCS contributor, practices intellectual property law in San Diego.

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