[Fsf-friends] "Marxist-Lessigism" by Dan Hunter in legalaffairs.org (long)

Frederick Noronha (FN) fred@bytesforall.org
Mon Dec 13 22:50:11 IST 2004


(picked up from the incommunicado list; apologies for crossposting)
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Marxist-Lessigism

Computer users of the world have united behind Stanford law professor
Lawrence Lessig-and what they're doing is much more important than his
critics realize.

By Dan Hunter

Legal Affairs (Nov-Dec 2004)
<http://www.legalaffairs.org/issues/November-December-2004/feature_hunter_no
vdec04.html>

AT SWARTHMORE COLLEGE, the crowd is mostly students, and maybe a few
professors and interested outsiders. It's a typical turnout for a public
lecture by a well-known law professor. But there is something different
and a little odd about this group. Swarthmore doesn't have a law school,
so the audience includes no young men in suits that still have the label
attached, and no young women with high-heeled shoes so new the soles
aren't scuffed. And there is something else, something funny about the
T-shirts. Everywhere you look, there are T-shirts with slogans, not
logos. No "Tommy Hilfiger" and "Ralph Lauren" here. Just shirts with
references too obscure to parse. What is "Downhill Battle"? Or "Grey
Tuesday"? One kid has a shirt with the picture of a skull and crossbones
on it, and written boldly across it are the words "Home Taping is
Killing the Music Industry." Look closer, and you'll see, in tiny type,
"(And it's fun)."

A couple of students get up to introduce the speaker. They're nervous,
disorganized, and rambling. Now you notice the handmade signs:
"Swarthmore Coalition for the Digital Commons" is taped to the lectern,
and "Free Culture" is written on the wall. It starts to become clear.
This isn't just a lecture; it's a political rally. People start to
shuffle; the students are losing their audience as the garbled
introductions continue. But when the speaker gets up to start, the
shuffling ends and there is a ripple of excitement. He is Lawrence
Lessig, the Stanford law professor, known to this crowd as Larry.
Dressed in black and wearing a pair of spectacles that could have been
handed down by Ben Franklin, he waits until the crowd settles. And
finally, you get it. Outside, lightning is cracking, but the smell in
the air is not the ozone from the thunderstorm. It's the smell of
revolution.

INTELLECTUAL PROPERTY-"I.P.," AS IT'S CALLED-revolves around three basic
property interests granted by federal statute: copyrights, patents, and
trademarks. Copyrights cover expression by authors of various sorts,
including books, plays, music, and so on. Patents protect underlying
ideas of useful inventions and processes, such as a chemical reaction or
an inventive mechanical device. And trademarks cover business brands.
For much of the 20th century, these I.P. interests (and other close
cousins such as trade secrets, unfair competition, and celebrities'
publicity rights) were narrow and uncontroversial. Businesses in the
industrial era cared about the factory, the production line, and the
land needed for them. But as the modern era rolled on, the importance of
industrial production waned. No longer were heavy machinery and physical
plants the predominant means of production; no longer was physical
inventory central to industry. In the developed world, control over
intangibles came to dominate the business agenda, and so too the
political agenda.

First introduced in the United States in 1790, copyright was limited in
its infancy to protecting musical, dramatic, literary, and artistic
works for 28 years, and it was later broadened to encompass photography,
video, and software for a period often in excess of 100 years. Patent
scope was widened, first to include computer algorithms and then
business methods-including those such as Amazon.com's patent for
one-click online purchases-and then life itself. In 2000, companies
including Celera Genomics and Incyte started receiving patents on
sequences of the human genome. Trademarks too were set loose from their
historical moorings. Not only was the trademark term extended, but the
prototypical application of a physical brand to a physical product was
no longer the limit of trademark. The sound of the Harley-Davidson
exhaust for motorcycles or a distinctive color of dry cleaning pads was
equally protected.

Though I.P. rights are private property there has long been some sense
that the public also has interests here. The concept of the public
domain was first advanced in 1896, when the Supreme Court noted that
upon the expiration of a patent the invention "fell into the public
domain" and was free for anyone to use. But over the decades that I.P.
rose in importance, the concept of the public domain was ignored, or
defined at best in negative terms. It was the carcass left over after
the I.P. system had eaten its fill.

Still, the seeds of the movement that Larry Lessig now leads blossomed.
In the late '70s, prompted by cases examining whether the heirs of Bela
Lugosi and Rudolph Valentino could control the current and future
representations of these dead actors, a young Duke University law
professor named David Lange attended an entertainment law symposium to
present a paper on celebrities' rights to their public image. Lange was
surprised at the distress of the screenwriters who attended his talk and
who argued that expanded publicity rights would reduce their ability to
adapt, use, or reimagine these characters and their histories. As Lange
described it, "the law of publicity was dispossessing individual
creators in order to benefit the interests of celebrities." From this
epiphany, Lange recast the public domain. Rather than the negative
leftovers, he wrote in an influential article 25 years ago, the public
domain was a vital, affirmative entity, the publicly accessible
collection of knowledge, ideas, history, and expression on which
creators draw in order to make new works.

The movement in defense of the public domain soon started to grow.
Academic works in the '80s and '90s by law professors Jessica Litman at
Wayne State University, Wendy Gordon at Boston University, Pamela
Samuelson at the University of California at Berkeley, and James Boyle
at Duke University explored the public domain's importance. Then, with
the 1998 introduction of the Sonny Bono Copyright Term Extension Act and
the Digital Millennium Copyright Act (or DMCA), the public woke up.

These statutes extended copyright terms, renewed copyrights on some
works that had already fallen into the public domain, and forbade
cracking digital locks on copyrighted material like DVDs. But they also
motivated public interest groups as never before. Before then, corporate
interests lobbied for I.P. expansion without much public comment. This
changed overnight as the acts were widely seen as driven entirely by
corporate interests, particularly Disney's fear that the first film
featuring Mickey Mouse would soon fall into the hands of the public.
Unanticipated uses of the DMCA also drew widespread attention. The first
incident occurred when a Princeton computer science professor was
threatened with prosecution if he disclosed research that he and his lab
had performed in breaking a music encryption system. Then a Russian
student was arrested while presenting a conference paper that
demonstrated how he had cracked digitally encrypted electronic books. By
the time students at Swarthmore College were threatened in 2003 with a
DMCA injunction against posting details of a potential e-voting election
scandal, the message was clear. The restrictions on speech, the threat
to research and inquiry, the quashing of dissent, the jailing of
researchers-all of Lange's worst fears and then some-were now being
realized.

The consequent backlash came at a bad time for I.P. owners. The rise of
file-sharing systems threatened severe damage to the music and movie
industries, and perhaps television networks. And social reformers were
beginning to question other parts of I.P. For example, the patent system
came under attack for the damage it inflicted on developing countries
that had been strong-armed by the United States into adopting U.S.-style
I.P. laws. This led to an increase in I.P. enforcement around the world,
but it also demonstrated the clear injustices in forcing the poor to
dance to the I.P. tune of the rich. American pharmaceutical
manufacturers were vilified because they refused to provide drug
therapies for HIV/AIDS in Africa for less than their
patent-monopoly-controlled price. All the claims that drug manufacturers
needed this monopoly to produce other important drugs rang hollow with
the millions of people in the developing world dying from AIDS and their
sympathizers.

Thus was the culture war joined. This is not a war between cultures, but
a war over culture-who owns it, who can use it in the future, and how
much it will cost. On one side are the I.P. owners, with the money and
the ear of government. Against them stand research and advocacy
institutes, with names like Creative Commons or the Center for the
Public Domain, and political action groups such as the Electronic
Freedom Foundation and the ACLU.

RECRUITING AND LEADING A BATTALION FOR THIS WAR is what Larry Lessig is
doing at Swarthmore on a wet night in April. He's talking about his new
book,
Free Culture, in which he argues for scaling back the copyright system.
Lessig is a prodigy of the legal academy: Now 43, he earned a B.A. in
economics and a B.S. in management from the University of Pennsylvania,
an M.A. in philosophy from Cambridge, and a J.D. from Yale Law School.
He clerked for Richard Posner of the Seventh Circuit Court of Appeals
and for Antonin Scalia of the Supreme Court, and he was a professor at
the University of Chicago and Harvard Law Schools before Stanford lured
him in a competition with Yale and Harvard. His rZsumZ lists four books
and 61 law review articles produced in his 15-year career as a legal
academic. But not everything he has touched has turned to gold. While he
has written about aspects of the Constitution dealing with subjects
other than intellectual property, the constitutionalists in the academy
greet some of that work with derision and even his admirers often
consider him an extravagant self-promoter.

With his dazzling academic record, fiery rhetoric, and prolific writing,
however, Lessig has become the most recognizable voice to articulate why
it was a bad idea to privatize the open environment of the Internet, and
how the expansion of I.P. threatens future innovation. Tonight he's
lending support to a student protest group, one formed by the students
threatened when they exposed the electronic voting scandal. Like other
student groups, this one is renouncing private I.P. interests, has the
word "commons" in its name, identifies with the I.P. have-nots, and
invokes a class struggle. Means of production, communal ownership, class
struggle, students with slogans on their shirts. Sounds like a Marxist
revolution.

LIKE MANY OTHER I.P. REFORMERS, Lessig is routinely denounced as a
communist. The most recent such attack was by a high-profile technology
columnist named Stephen Manes. In several vitriolic attacks prompted by
Lessig's Free Culture, Manes described Lessig as "blustering" and
"bloviating," a "buffoon" and an "idiot," whose ideas ("droppings") were
"nuts" and "laughable." Manes contrasted Lessig's "radicalism" on
copyright policy with the stance of "responsible creators" like Walt
Disney, and made it clear that the sort of reform Lessig advocates is
ideologically suspect because it involves stealing property from
copyright owners. Manes proposed renaming Lessig's book, Freeloader
Culture: A Manifesto for Stealing Intellectual Property. The allusion to
Karl Marx and Friedrich Engels's Communist Manifesto is hard to miss.

Manes's attacks, though startling in their bile, are hardly surprising.
He is a columnist at Forbes, a magazine that urbanely styles itself as
the "Capitalist Tool." If any organ is going to spy Marxist leanings in
the intellectual property reform movement, it is this one. Manes is not
the first to sniff Marxism in I.P. reform proposals. A senior writer at
the Ayn Rand Institute accused Lessig of Marxism a number of years
before, suggesting that his efforts in the case of Eldred v. Ashcroft,
in which Lessig argued for overturning one of Congress's many recent
copyright extensions, were shameful and would lead to "cannibalism" of
property interests. Mouthpieces for high-profile I.P. owners such as
Paramount Pictures also smell "whiffs of Marxism" in the reformer's
distaste for corporate control of culture.

The Marxist slur is a simple rhetorical device that paints I.P.
reformers as both dangerous and willfully ignorant. Not only do they
desire a Bolshevik revolution, and probably a Stalinist purge, but these
reformers don't realize that the communists lost the Cold War. Yet this
use of the "Marxist" tag is shallow and empty.

When people such as Manes or those at the Ayn Rand Institute charge
Lessig with Marxism, they refer to two features of Marxist-Leninism: the
rejection of private property, and the civil uprising that Mikhail
Bakunin and V.I. Lenin said was necessary to move from capitalism to
communism. The kind of social reform of intellectual property proposed
by Lessig doesn't involve either of these elements. Lessig isn't some
modern-day Pierre-Joseph Proudhon claiming that "intellectual property
is theft." His reform agenda is the I.P. analog of the New Deal social
welfarism that ameliorated the worst excesses of capitalism, and rescued
it from social disaster. It's the recognition that private property
systems function better if some limits are placed upon the market. Even
many of the most ardent capitalists have learned the Marxian lesson that
unrestrained free market capitalism creates a permanent underclass that
is much more likely to revolt and overthrow the system. It's a better
idea for the wealthy to provide a safety net for the lumpenproletariat
than to be the first up against the wall when the revolution comes.

ON THE OTHER HAND, WHILE LESSIG'S PROPOSED I.P. REFORM stops well short
of the destruction of private property, it stirs a Marxian debate in a
much more interesting and crucial sense. For starters, it is clear that
I.P. reform is a conflict involving a significant class struggle. There
are I.P. haves and I.P. have-nots. And in a world where the means of
production are increasingly controlled by intellectual property, the
dynamics exist for significant conflict. But the majority of the I.P.
have-nots are in the developing world, which is why the globalization
debate often involves intellectual property. Any Marxist-Lessigist
revolution therefore is likely to be mediated through the cordon
sanitaire of international trade, and through the World Trade
Organization. The prospect of I.P.-induced violence, at least in the
United States, is unlikely.

But more than this, I.P. reform arises out of a genuine Marxism, that of
the open source movement. Open source, or "copyleft," as the movement is
often called, involves the transfer of the means of cultural and
creative production from capital to the worker. It is usually thought to
be limited to computer software. The Linux operating system was created
by thousands of programmers and has been freely distributed on the
understanding that others might amend, fix, improve, and extend it. But
while software might be the paradigmatic example of open source, the
revolution it promises reaches much further. The widest-read and most
influential newspaper in South Korea is Ohmynews, whose motto is "Every
Citizen is a Reporter." Ohmynews hires no reporters, and relies wholly
on individual contributions of news stories by its readers. Another
example is the Wikipedia, an open source, online encyclopedia that is
entirely written, edited, and rewritten by anyone who cares to
contribute to it. Even though there is no control structure-there are no
editors, nor is there a publisher-it rivals commercial encyclopedias in
scope and quality of coverage. Or consider the Distributed Proofreader's
Project, a group of people who volunteer to proofread and edit vast
reams of scanned documents for inclusion in Project Gutenberg, another
open source initiative that puts out-of-copyright books online.

Though Bill Gates recognizes Linux as a threat to Windows, it is easy to
miss the truly revolutionary nature of this type of cultural production.
If you give people the opportunity to create, they will do so, even
without economic incentives. The core justification for intellectual
property protection is that, without it, no one would have any reason to
produce cultural, creative content. They would undertake a rational
calculus and go off to become tax attorneys. But the dynamism of the
open source movement shows that this fundamental justification doesn't
hold. Many people will produce creative content even outside what we can
think of as the capitalist underpinnings of I.P. It's a small step to go
from this to a Marxist revolution: The open source movement promises to
put the means of creative production back in the hands of the people,
not in the hands of those with capital.

It is not an accident that open source and Marxist-Lessigist I.P. reform
have occurred at the same time, or that Lessig is a prominent advocate
of Linux. Open source software demonstrated that the "incentive
justification" for I.P. wasn't supported once you put the means of
creative endeavor and the means of dissemination in the hands of
individuals, as the Internet has done for many fields. So, when the DMCA
and other corporate-controlled I.P. expansions came about, programmers
weaned on open source code no longer bought the corporations' arguments
that these new laws were necessary for innovation and progress to
continue. The I.P. reform movement began with software, but it is moving
into all types of cultural material: newspapers, magazines, commentary,
music, even movies. Given the experience we now have with open source,
this is not strange. A Marxist might suggest that it is inevitable. What
is unusual is how, in their rush to vilify Marxist-Lessigism, I.P.
owners and copyright apologists like Stephen Manes miss the importance
of open source, which, as the true creative workers' revolution,
threatens the core of their industries. While copyright and patent
reform might be the most visible aspect of the Marxist-Lessigist
revolution, it is the least significant.

IT'S STILL RAINING AT SWARTHMORE. Larry Lessig is explaining the
importance of the public domain as a source for future creativity, when
a series of thunderclaps shakes the auditorium. For a moment everybody
stops. Lessig jokes about the "black helicopters" of the I.P. owners,
and people relax.

At the end of his presentation, student activists swamp him with
requests for guidance about what they should do next. They plot how to
reverse the enclosure of the public domain. If nothing else, these
students are engaged with the political process of intellectual property
in a way that has never been seen before. The expansion of I.P. has led
to the creation of a movement that is fascinating in two ways: It
guarantees that the public will have a voice in future I.P. policy
making, and it has created a new kind of student movement that is one of
the more active political movements on college campuses. There are no
riots, but this movement promises a more socially conscious intellectual
property system, one achievable without bloodshed.

But away from the zeal of the student activists, the real revolution is
taking place. None of the revolutionaries recognize themselves as
such-they're just open source programmers or "citizen journalists." But
they promise to upend the intellectual property system because they are
creating things for the sake of curiosity, or for the approbation of
their peers, or because it's fun. This revolution will just happen, as
people take up the means of production for themselves-and even if it
won't be televised, it will surely be reported in Ohmynews.

Dan Hunter teaches at the University of Pennsylvania.


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