Last Thursday, Google generously invited me to hear Professor Johnathan Zittrain speak about his new book, The Future of the Internet—And How to Stop It. It featured an interesting presentation by Zittrain, followed by an attack on copyrights and privacy presented by self-described “copyfighter” Professor Lawrence Lessig.

Zittrain spoke first. Although now at Oxford, he was for many years part of Harvard Law School’s Berkman Center for the Study of the Internet and Society, a place where the quest for truth too often bows to implacable hostility to enforceable intellectual property rights. (That’s a harsh, but fair, characterization—at least until someone from Berkman explains how Professors Fisher, Palfrey and Zittrain could have, in good faith, filed their briefs in Alaujan and Grokster. In Alaujan, the Berkman professors opposed copyright owners’ efforts to sue users of file-sharing programs who had shared many hundreds of infringing files, arguing that these users were largely "innocent": Program distributors had created “technological barriers” that made “disabling file-sharing … [a] very difficult, and perhaps impossible, task for all but the most expert computer users.” In Grokster, the Berkman professors opposed copyright owners’ efforts to sue the distributors of programs like those that had allegedly tricked all of the Alaujan plaintiffs into sharing, arguing that, instead, copyright holders could just sue a lot more of those “innocent” users. In short, when program users were sued for infringement, the Berkman professors blamed the program distributors; when program distributors were sued for infringement, the Berkman professors blamed the program users. This sure looks like a professorial version of Two-Card Monte.)

Fortunately, Zittrain’s new book has a more reasonable thesis that inspires a more conciliatory approach. He argues that the open architecture of the Internet makes it “generative”—in ways both good and bad. In effect, the open architecture of the Internet and computer operating systems facilitates global distribution of any type of program--regardless of whether it is a third-world entrepreneur’s brilliant new productivity application, or Russian-Mafia-created malware that facilitates spam, identity theft, and extortion. Zittrain worries that spyware, viruses, scams, and the other hassles in such a no-rules environment will ultimately lead people to migrate towards so-called “walled gardens” controlled by a third party.

While I am not sure that I see this situation as so dire (or so either-or), Zittrain’s basic point seems reasonable, and it would seem to apply not only to potential Internet users, but also to content providers. For example, lower levels of piracy might well lead rational game developers to target their efforts more towards potential “walled” environments (like MMORPs or consoles). A Boston Review article summarizing Zittrain’s book is here.

And then, the Lessig lecture began. Lessig claimed that—just as he and his “copyfighters” argue that persons who make risky investments of time and money in order to create feature films must “get over” the notion that they can enforce their copyrights—so to must everyone else “get over” the notion of personal privacy. Lessig thus argued that “Hollywood” must accept compulsory licensing, and privacy advocates must accept a form of pseudo-anonymity that the government can pierce. In short, Lessig’s vision of the Internet tolerates neither exclusive rights in expressive works nor rights in personal privacy. Consequently, we will all just have to “get over” our notions about copyrights and privacy. Otherwise, we would reject Lessig’s vision for the Net, and we could not want that.

Interestingly, Lessig’s plans to dispose of copyrights and privacy rights have some synergy. His preferred mechanism for nationalizing the production of expression would make it “seem free” by replacing the signaling and allocative effects of the price system with pervasive federal surveillance of everything that law-abiding citizens read, watch, or listen to. “Pseudo-anonymity” that the government can ignore as needed would be useful in such a system.

In short, Lessig’s presentation was edifying. In his 1999 book Code, Lessig’s doomsaying ire—while broadly distributed—focused in particular upon commercial providers of online services. Lessig warned that these service providers would turn the Net into a “panopticon,” (a prison of pervasive surveillance), unless we embraced “the idea of placing the design of … the Internet into the hands of government.” When this idea proved unpopular—and when the rise of Amazon and eBay somehow failed to result in fascism—Lessig adopted a piecemeal approach.

First, he argued that content-creators’ copyrights—their property rights—will destroy the Net unless we replace them with "compulsory" government regulation of the production of expression. (See The Future of Ideas 201 (2001); Free Culture 296-304 (2004)). Next, he argued that their property rights of providers of Internet infrastructure and access will destroy the Net’s “neutrality” unless the government also severely regulates them. Now, he attacks Internet users, arguing that their privacy rights will destroy the Net unless we replace personal privacy with government-controlled “pseudo-anonymity.”

Lessig thus argues that a really free Internet requires the government to override individual rights so it can control 1) the production of the content that flows over the Net; 2) the infrastructure used to access that content; and 3) the privacy of people who use the government-regulated infrastructure to access the government-controlled content. Note, however, that he does not say that these are the only individual rights that the government must abolish or regulate in order to “save the Net.”

Consequently, one wonders whether others will soon find that they too must “get over” their individual rights and submit to government control: Lessig’s campaign to secure pervasive government regulation and control of the Internet could end right where it began.

N.B.: A while back, Lessig got in some trouble over a similar pseudo-anonymity proposal. Fortunately, Lessig tends to realize that when almost everyone disagrees with him, this is usually means that he is right and almost everyone else is wrong. For example, after losing in Grokster, he still knew that his view of the case was correct—even though it was admittedly rejected by 90% of the "ordinary people" who had "heard both sides of the argument" and by 100% of the Justices of the United States Supreme Court.

posted by Thomas Sydnor @ 11:23 AM |

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