[M4IF Discuss] Perfect Control

[Craig Birkmaier]

Lawrence Lessig is on a roll...
Not to be confused with "Let's Roll," the famous words of Todd 
Beamer, just before he and fellow passengers fought to retake control 
of Flight 93, hijacked by terrorists on Spetember 11. The  Todd M. 
Beamer Foundation now seeks to trademark "Let's Roll" to sell 
T-shirts and coffee mugs to raise money for the charity.
Let's Roll provides a classic example of how "ideas" quickly 
promulgate through a "free" society. The term became a rallying cry 
for our nation, used in speeches by President Bush and a popular song 
by Neil Young. Now a "charitable" group seeks to "control" it's use 
to raise money.
Lessig might well be considered to be a crusader for the freedom of 
ideas. An advocate for creativity and innovation, fighting against 
those who seek "perfect control," by co-opting the very technologies 
that threaten the ever increasing control over content that Congress 
has granted to powerful constituents over the past century.
Lessig and his colleagues won a surprising victory this week, as the 
Supreme Court agreed to hear a copyright case filed by Lessig, 
challenging the 1998 Sonny Bono Copyright Term Extension Act. One 
could well imagine the elation of Lessig and his colleagues after 
hearing of this victory. After decades of setbacks - 11 Congressional 
extensions of copyright terms in the past 40 years -   those who 
interpret the Constitution requirement that copyrights have a 
"limited term" literally, finally see a window of opportunity...Let's 
Roll!
Lessig has written a book entitled, "The Future of Ideas," in which 
he examines the conflict between the Constitutional intent to move 
the creative work of authors and inventors into the public domain 
quickly, and the desire of Intellectual Property owners to have 
"perfect control" over their creations.
An excerpt from the book has been published with the author's 
permission by The American Spectator, and is currently published on 
the web at Gilder.com. IT is lengthy, but well worth the read for 
those of use who are concerned about the future of digital media, 
DTV, MPEG-4 et al.
I have not asked permission to reproduce the excerpt here. Somehow I 
don't think that Gilder, the American Spectator or Lawrence Lessig 
will mind. As a result of reading this I am going to buy Lessig's 
book.
This excerpt is focused primarily on the current debate about 
copyrights, however, Lessig  makes several point that are universally 
true about the current battles for "perfect control" that are highly 
relevant to the discussions on the OpenDTV and MPEG4IF lists. And at 
the end, he connects his remarks to the issue of patents as well. If 
you don;t have time to read the entire piece, please read the 
following three paragraphs...
"But the Internet itself is also changing. Features of the 
architecture-both legal and technical-that originally created this 
environment of free creativity are now being altered. They are being 
changed in ways that will re-introduce the very barriers that the 
Internet originally removed.
"There are strong reasons why many are trying to rebuild these 
constraints: They will enable these existing and powerful interests 
to protect themselves from the competitive threat the Internet 
represents. The old, in other words, is bending the Net to protect 
itself against the new."
. . .
"The urgency in the field of patents is even greater. Here again, 
patents are not per se evil; they are evil only if they do no social 
good. They do no social good if they benefit certain companies at the 
expense of innovation generally. And as many have argued 
convincingly, that's just what many patents today do."
Regards
Craig Birkmaier
Pcube Labs
http://gilder.com/AmericanSpectatorArticles/Lessig/Control.htm
Control & Creativity
The future of ideas is in the balance
By Lawrence Lessig
The Internet puts two futures in front of us, the one we seem to be 
taking and the one we could. The one we seem to be taking is easy to 
describe. Take the Net, mix it with the fanciest TV, add a simple way 
to buy things, and that's pretty much it.
Though I don't (yet) believe this view of America Online, it is the 
most cynical image of Time Warner's marriage to AOL: the forging of 
an estate of large-scale networks with power over users to an estate 
dedicated to almost perfect control over content, through 
intellectual property and other government-granted exclusive rights. 
The promise of many-to-many communication that defined the early 
Internet will be replaced by a reality of many, many ways to buy 
things and many, many ways to select among what is offered. What gets 
offered will be just what fits within the current model of the 
concentrated systems of distribution. Cable television on speed, 
addicting a much more manageable, malleable and sellable public.
The future that we could have is much harder to describe. It is 
harder because the very premise of the Internet is that no one can 
predict how it will develop. The architects who crafted the first 
protocols of the Net had no sense of a world where grandparents would 
use computers to keep in touch with their grandkids. They had no idea 
of a technology where every song imaginable is available within 
thirty seconds' reach. The World Wide Web was the fantasy of a few 
MIT computer scientists. The perpetual tracking of preferences that 
allows a computer in Washington state to suggest an artist I might 
like because of a book I just purchased was an idea that no one had 
made famous before the Internet made it real.
Yet there are elements of this future that we can fairly imagine. 
They are the consequences of falling costs, and hence falling 
barriers to creativity. The most dramatic are the changes in the 
costs of distribution; but just as important are the changes in the 
costs of production. Both are the consequence of going digital: 
Digital technologies create and replicate reality much more 
efficiently than non-digital technology does. This will mean a world 
of change.
Skip ahead to just a few years from now and think about the new 
potential for creativity. The cost of filmmaking is a fraction of 
what it was just a decade ago. The same is true for the production of 
music or any digital art. Digital tools dramatically extend the 
horizon of opportunity for those who could create something new.
And not just for those who would create something "totally new," if 
such an idea were even possible. Think about the ads from Apple 
Computer urging that "consumers" do more than simply consume:
Rip, mix, burn.
After all, it's your music.
Apple, of course, wants to sell computers. Yet their ad touches an 
ideal that runs very deep in our history. For the technology that 
they (and of course others) sell could enable this generation to do 
with our culture what generations have done from the very beginning 
of human society: to take what is our culture; to "rip" it-meaning to 
copy it; to "mix" it-meaning to re-form it however the user wants; 
and finally, and most important, to "burn" it-to publish it in a way 
that others can see and hear.
We now have the potential to expand the reach of this creativity to 
an extraordinary range of culture and commerce. Technology could 
enable a whole generation to create-remixed films, new forms of 
music, digital art, a new kind of storytelling, writing, a new 
technology for poetry, criticism, political activism-and then, 
through the infrastructure of the Internet, share that creativity 
with others.
The future that I am describing is as important to commerce as to any 
other field of creativity. Though most distinguish innovation from 
creativity, or creativity from commerce, I do not. The network that I 
am describing enables both forms of creativity. It would leave the 
network open to the widest range of commercial innovation; it would 
keep the barriers to this creativity as low as possible.
Already we can see something of this potential. The open and neutral 
platform of the Internet has spurred hundreds of companies to develop 
new ways for individuals to interact. Public debate is enabled, by 
removing perhaps the most significant cost of human 
interaction-synchronicity. I can add to your conversation tonight; 
you can follow it up tomorrow; someone else, the day after.
The technology will only get better. And contrary to the 
technology-doomsayers, this is a potential for making human life 
more, not less, human.
But just at the cusp of this future, at the same time that we are 
being pushed to the world where anyone can "rip, mix [and] burn," a 
countermovement is raging all around. To ordinary people, this slogan 
from Apple seems benign enough; to the lawyers who prosecute the laws 
of copyright, the very idea that the music on "your" CD is "your 
music" is absurd. "Read the license," they're likely to demand. "Read 
the law," they'll say, piling on. This culture that you sing to 
yourself, or that swims all around you, this music that you pay for 
many times over-when you hear it on commercial radio, when you buy 
the CD, when you pay a surplus at a large restaurant so that they can 
play the same music on their speakers, when you purchase a movie 
ticket where the song is the theme-this music is not yours. You have 
no "rights" to rip it, or to mix it, or especially to burn it. You 
may have, the lawyers will insist, permission to do these things. But 
don't confuse Hollywood's grace with your rights. These parts of our 
culture, these lawyers will tell you, are the property of the few. 
The law of copyright makes it so, even though the law of copyright 
was never meant to create any such power.
Indeed, the best evidence of this conflict is again Apple itself. For 
the very same machines that Apple sells to "rip, mix [and] burn" 
music are programmed to make it impossible for ordinary users to 
"rip, mix [and] burn" Hollywood's movies. Try to "rip, mix [and] 
burn"  Disney's 102 Dalmatians and it's your computer that will get 
ripped, not the content. Software, or code, protects this content, 
and Apple's machine protects this code.
This struggle is just a token of a much broader battle, for the model 
that governs film is slowly being pushed to every other kind of 
content. The changes we will see affect every front of human 
creativity. They affect commercial as well as noncommercial, the arts 
as well as the sciences. They are as much about growth and jobs as 
they are about music and film. And how we decide these questions will 
determine much about the kind of society we will become. It will 
determine what the "free" means in our self-congratulatory claim that 
we are now, and will always be, a "free society."
It is best described as a constitutional question: It is about the 
fundamental values that define this society and whether we will allow 
those values to change. Are we, in the digital age, to be a free 
society? And what precisely would that idea mean?
FREE SPEECH?
FREE BEER?
Every society has resources that are free and resources that are 
controlled. Free resources are those available for the taking. 
Controlled resources are those for which the permission of someone is 
needed before the resource can be used. Einstein's theory of 
relativity is a free resource. You can take it and use it without the 
permission of anyone. Einstein's last residence in Princeton, New 
Jersey, is a controlled resource. To sleep at 112 Mercer Street 
requires the permission of the Institute for Advanced Study.
Over the past hundred years, much of the heat in political argument 
has been about which system for controlling resources-the state or 
the market-works best.
That war is over. For most resources, most of the time, the market 
trumps the state.
This, however, is a new century; our questions will be different. The 
issue for us will not be which system of exclusive control-the 
government or the market-should govern a given resource, but whether 
that resource should be controlled or free.
So deep is the rhetoric of control within our culture that whenever 
one says a resource is "free," most believe that a price is being 
quoted-free, that is, as in zero cost. But "free" has a much more 
fundamental meaning-in French, libre rather than gratis, or for us 
non-French speakers, and as the philosopher of our age and founder of 
the Free Software Foundation, Richard Stallman, puts it, "free, not 
in the sense of free beer, but free in the sense of free speech." A 
resource is "free" if 1) one can use it without the permission of 
anyone else; or 2) the permission one needs is granted neutrally. So 
understood, the question for our generation will be not whether the 
market or the state should control a resource, but whether that 
resource should remain free.
This is not a new question, though we've been well trained to ignore 
it. Free resources have always been central to innovation, creativity 
and democracy. The roads are free in the sense I mean; they give 
value to the businesses around them. Central Park is free in the 
sense I mean; it gives value to the city that it centers. A jazz 
musician draws freely upon the chord sequence of a popular song to 
create a new improvisation, which, if popular, will itself be used by 
others. Scientists plotting an orbit of a spacecraft draw freely upon 
the equations developed by Kepler and Newton and modified by 
Einstein. Inventor Mitch Kapor drew freely upon the idea of a 
spreadsheet-VisiCalc-to build the first killer application for the 
IBM PC-Lotus 1-2-3. In all of these cases, the availability of a 
resource that remains outside of the exclusive control of someone 
else-whether a government or a private individual-has been central to 
progress in science and the arts. It will also be central to progress 
in the future.
Free resources have nothing to do with communism. (The Soviet Union 
was not a place with either free speech or free beer.) Neither are 
the resources that I am talking about the product of altruism. I am 
not arguing that there is "such a thing as a free lunch." There is no 
manna from heaven. Resources cost money to produce. They must be paid 
for if they are to be produced.
But how a resource is produced says nothing about how access to that 
resource is granted. Production is different from consumption. And 
while the ordinary and sensible rule for most goods is the "pay me 
this for that" model of the local convenience store, a second's 
reflection reveals that there is a wide range of resources that we 
make available in a completely different way.
The choice is not between all or none. Obviously many resources must 
be controlled if they are to be produced or sustained. I should have 
the right to control access to my house and my car. You shouldn't be 
allowed to rifle through my desk. Microsoft should have the right to 
control access to its source code. Hollywood should have the right to 
charge admission to its movies. If one couldn't control access to 
these resources, or resources called "mine," one would have little 
incentive to work to produce these resources, including those called 
mine.
But likewise, and obviously, many resources should be free. The right 
to criticize a government official is a resource that is not, and 
should not be, controlled. I shouldn't need the permission of the 
Einstein estate before I test his theory against newly discovered 
data. These resources and others gain value by being kept free rather 
than controlled. A mature society realizes that value by protecting 
such resources from both private and public control.
No modern phenomenon better demonstrates the importance of free 
resources to innovation and creativity than the Internet. To those 
who argue that control is necessary if innovation is to occur, and 
that more control will yield more innovation, the Internet is the 
simplest and most direct reply. For the defining feature of the 
Internet is that it leaves resources free. The Internet has provided 
for much of the world the greatest demonstration of the power of 
freedom-and its lesson is one we must learn if its benefits are to be 
preserved.