Law professor and copyright expert lets ideas percolate at Breakfast Briefing

No economic evidence has been compiled to show the patent system does more good than harm, intellectual property expert asserts

Lawrence Lessig

Lawrence Lessig

Law School Professor Lawrence Lessig, widely considered the foremost authority on intellectual property issues in the digital era, presented the case for overhauling copyright law to attendees of the Stanford Breakfast Briefing on Aug. 9. His presentation was titled "Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity."

That is also the title of his 2004 book. But conveying that message, at least in the way that the techno-literate communicate today, in a simple text such as this, would be so 20th century. In the digital age, people increasingly express themselves audiovisually, through music and videos that are familiar in American culture but remixed to convey different messages.

Take, for instance, a digital video that Lessig played, in which footage of President Bush and British Prime Minister Tony Blair was edited to make it appear as if they were singing "Endless Love" to one another in sappy slow motion.

"What's important here is not the particular technical capacity, but that the capacity has been democratized," said Lessig, who spoke in synch with an audiovisual presentation, much like a high-tech evangelist at an annual conference. "Essentially, anybody with access to a $1,500 computer can now begin to use sounds and images from the culture around us to remix our culture, to say things differently."

But Lessig was not quite preaching to the choir. The Breakfast Briefings cater to executives in and around Silicon Valley, many of whom work for companies with intensely vested interests in preserving patent laws—the business-sector equivalent of copyright laws. Sponsored by the Office of Public Affairs, this month's talk drew more than 100 individuals, a third of whom were Stanford affiliates, with the rest consisting of professionals from technology companies, law firms, banks and other fields.

So while Lessig's critique of traditional copyright law may have resonated directly with artists, authors and academics, there were probably some in the audience who generally saw nothing wrong with strict control of intellectual property.

Lessig used privately funded drug research as an example of an area in which patents should continue to play an essential role. But in many other contexts, Lessig said no economic evidence has been compiled that demonstrates the patent system does more good than harm. U.S. patents last for about 20 years, while copyrights last for the life of the artist or author plus 70 years, according to Lessig.

"The problem here is a particular architecture of copyright law—that architecture as it applies in the digital age. And any sensible, sane response to the explosion of digital technology and this outdated architecture would be to change that architecture—to update it, to bring it into the 21st century," Lessig said.

The author of several books on the subject, Lessig also runs Creative Commons, a nonprofit organization that allows content creators to mark their works with varying degrees of freedom for use by others. The decal for Creative Commons is similar to that of the familiar mark of copyright, except that it has two C's inside a circle and is accompanied by the phrase "some rights reserved."

Through Creative Commons, authors, artists and educators can choose licenses that define whether a work may be used for commercial purposes, whether it may be modified and whether the modifier should be required to share alike derivative content. Since its launch in 2002, two other versions of Creative Commons have come online: one for scientists and researchers, and another for content creators outside the United States. Currently, individuals in more than 70 countries have licensed their content, Lessig said.

The issue is especially relevant given the explosion of digital content sharing via e-mail, blogs and sites such as MySpace and YouTube. Lessig began his talk by showing music videos made by average users who took existing Japanese anime cartoons and replaced the audio with country music and the theme song for Jim Henson's Muppet Show. Lessig also played a song by DJ Danger Mouse, who took rap lyrics from Jay-Z's Black Album, mixed them using a computer with songs from the Beatles' White Album and called his creation the Grey Album.

Lessig cited those as a few examples of what he termed the read-write culture: "It is a culture where people participate in the creation and the re-creation of their culture—in this sense, it's read-write," he said. "There are literally tens of thousands of kids spread across the world, in this community of re-creativity, using digital technology to remix this original culture."

Lessig said this culture clashes head-on with the read-only culture, which is championed by established media giants in the entertainment and telecommunications industries that seek to control content for their own profit via copyright. Examples of this include the online bookseller Amazon experimenting with a pay-per-page service and the dollar-a-song structure of iTunes, Lessig explained.

However, he quickly noted that he is against the type of file sharing where members of peer-to-peer networks hoard music instead of paying. "It's not about getting something for nothing," Lessig said. "This is about the potential and capacity for the free development of our culture that these technologies enable.

"As copyright law is currently constituted, it conflicts with the practice of the read-write Internet. It conflicts because with every use of culture that they 'copy,' the copyright law regulates all of these uses. Permission is required for everything," Lessig said. "Copyright law as currently architected will smother this read-write culture, overburdening this kind of creativity in a world where every use is a copy and the law regulates copies."

But besides the democratic, social and educational values that a more unfettered Internet would uphold, Lessig said, the economic potential of the read-write sector could be much richer than its read-only nemesis. He cited an advertising company that brings in more money for itself and a content creator as the number of times that the content is forwarded on and viewed by others increases. Lessig also cited a band that saw sales of a recent album overtake all its previous ones after initially being released over the Internet for free.

During the question-and-answer portion of his talk, he explained to skeptical executives how software engineers in Europe recently went to their lawmakers and demanded they not opt for the American model of patent protection because it will hurt their companies' efforts to be great competitors in the global market.

"So the beneficiaries are the opponents, and that's a pretty good sign that there's a problem," Lessig said. "But in the United States, that problem never gets reflected in the political system because the patent bar, in my view, has a disproportionate control over Congress."

But the Creative Commons licenses, which double as a badge of support for the read-write culture Lessig spoke of, may not be enough in the years to come. Lessig said he believes the fight to overhaul copyright laws will eventually have to go to Congress. If the rules don't change, Lessig said, the war that has pitted established media giants against average citizens who mix and remix cultural content in ways currently perceived as illegal could have harmful societal effects for the generations ahead.

"The question that we need to ask, we responsible members of a democracy, is whether this war that criminalizes our kids is good. We live in this age of prohibition, where we live life increasingly against the law," Lessig said. "The point we need to recognize is how corrosive this practice is."