In this book, American legal scholar Lawrence Lessig discusses contemporary intellectual property law and the effect of the Internet on it. Lessig argues that the current American climate surrounding intellectual property is misguided and needs correction. Lessig uses a number of entertaining and persuasive anecdotes to argue his position, and I think makes a very compelling case for radically rethinking our intellectual property framework.
Lessig paints a broad picture of the state of intellectual property law in the United States, including the history of our legal system starting with British legal traditions. Lessig discusses contemporary cases surrounding intellectual property and describes some of the very disturbing lawsuits brought under the power of the DMCA (Digital Millenium Copyright Act), including a lawsuit for potentially $12 million over a student's development of a search engine which indexed files on a university computer system. Lessig finishes with a plea to US voters and lawmakers to make changes in how we see intellectual property and to alter our current legal system.
At one point, Lessig related a story about a farming couple called the Causbys. The Causbys sued airlines, arguing that their property rights were being violated by airplanes passing overhead, due to the current understanding of property rights extending indefinitely up from ones terrestrial claims. The attorneys for the Causbys argued that airlines should be required to clear their flight trajectories with all property holders over whom they intended to pass. In the Supreme Court decision finding against the Causbys, one Justice remarked that the law should be changed due to the advent of the airplane, that “common sense rebelled” against the interpretation of the law that the Causbys favored. I really appreciated this statement. It seems that too often, courts make decisions based on a desire to retain laws in their current format, ignoring the pressing issues of the day. An issue that comes readily to mind is the debate surrounding the second amendment, in which courts continue to rule that any restriction on gun ownership is seemingly an infringement on the rights of American gun owners. In my mind, common sense rebels against such an interpretation.
One thing I found somewhat distressing was Lessig's seemingly boundless naivete. At several points, I found myself practically shaking my head and thinking to myself “But Larry the world doesn't work that way.” For instance, near the end of the book, Lessig recounts his experience arguing a case before the Supreme Court and admits his failure in the case was in part due to his reliance on the conservative-leaning SCOTUS’ adherence to its principles, namely an originalist and close reading of the Constitution. He says as much on page 220:
Many believed the decision in Lopez stood for politics — a conservative Supreme Court, which believed in states’ rights, using its power over Congress to advance its own personal political preferences. But I rejected that view of the Supreme Court's decision. Indeed, shortly after the decision, I wrote an article demonstrating the “fidelity” in such an interpretation of the Constitution. The idea that the Supreme Court decides cases based upon its politics struck me as extraordinarily boring. I was not going to devote my life to teaching constitutional law if these nine Justices were going to be petty politicians.
Firstly, ignoring the peurile sycophantic tone Lessig adopts here, originalism is nothing to be lauded. SCOTUS’ recent turn towards originalism is well-documented as nothing more than a means to an end rather than an ideology in and of itself. That's why Lessig bet on the wrong horse. The Conservatives on the Court were not originalists first and Conservatives second, but the other way round. Of course they'd send that horse to slaughter the second it conflicted with something they prized, namely profits. Secondly, Lessig sounds utterly ridiculous. The Supreme Court has always been political. It takes years of reading the self-indulgent words of judges and lawyers to come to such a professionally deluded view of the Court as Lessig's. But this is fairly typical of a liberal. Despite the many and varied failings of the national institutions, liberal elites like Lessig will never cease to sing their praises. Thirdly, at one point Lessig claims that Supreme Court justices are not vulnerable to being bought by lobbyists and private individuals given that they aren't elected. To me, this seems utterly foolish. They may not be elected, but they are appointed, and Justices don't get appointed for refusing to play ball. Sure, once they're appointed they can go rogue and decide however they want (Sandra Day O'Connor famously did this to a small but notable extent), but this is less likely than the alternative, which is to hold firm to whatever ideals they espouse at the beginning of their terms. Justices are influenced by other things, such as the social circles they move in, their friends and fellow ideologues, and their academic and professional contacts.
A point of Lessig's that I very much agree with (although it has been made in many other books and is not original to him) is the point that the justice system does not work for the poor or minorities, but primarily for the well-heeled and those able to afford the services of lawyers. Lessig describes the astronomical costs of defending against a DMCA-related lawsuit and how many individuals and small businesses are simply forced to comply with the wishes of the corporate behemoths. I agree with Lessig that our legal system needs serious pruning. A possible change would be a system wherein a Judge decides whether a case even meets the criteria of the DMCA (or any similar act) and decides whether a lawsuit has grounds before any lawyers are involved at all. That would do something to alleviate the unfair situation that DMCA takedown notices incur. In addition to this, the DMCA needs to be dramatically reworked and largely thrown out.
I also quite appreciated Lessig's discussion of the state of intellectual property in Britain and the early US. It was eye-opening to read how much was considered fair-use prior to the current state of affairs. For instance, adapting a book into a film or play was a perfectly legal thing to do, which seems so alien to our current situation. If I were to read a great book today and decide to make a play out of it without getting the author's permission, I think anyone today would agree that I've done something definitely illegal and probably morally wrong. We've become so used to the idea that artists and creators should control “derivative works” that I don't think many people even realize that this is an unnatural and fairly recent turn of events. Not to say derivative works shouldn't be protected (I agree with Lessig that they should to some extent) but that so many people, myself included prior to reading this, don't even realize this is radically different from the prior situation. Hats off to the attorneys and lobbyists for the record labels and movie studios.
Something I noticed Lessig do a couple of times was to denigrate communists and socialists while trying to appear centrist and not like a “crunchy lefty”. I understand his need to appeal to the average American, but I felt that the attacks on leftism detracted from his message and were overall a little silly. They seemed almost tossed in for good measure, with unnatural segues from discussing IP law to criticizing Soviet economies for being too cookie-cutter and uncreative. Seems like big talk for the country that produces so many similar films in the same year that there's a whole Wikipedia page for the phenomenon. https://en.wikipedia.org/wiki/Twin_films
A fun item from the book was a discussion of a DMCA takedown order from Sony to a hacker who had posted links to code to make an Aibo jazz dance. I Googled the case and it turns out the original site is still up and running in all of its turn-of-the-millennium, everything is an HTML table, what even is CSS glory at http://aibohack.com/. The site even has instructions to Netscape users on how to save videos. My assumption is the author decided to turn the site into a memorial to the eternal fight against big corps, in which case I'd love to donate a digital wreath.
Overall, Lessig's work was interesting and enlightening, and I felt that I learned a great deal about the state of IP law and history. However, I found Lessig pretty inadequate and lily-livered concerning the remedy for such issues. Lessig doesn't seem fully committed to a real substantive change. I would have liked to see more calls to action and stronger language.