Lessig: Open-Source Industry Must Lobby for Political Backing

By John Pallatto  |  Posted 2004-03-17

Lessig: Open-Source Industry Must Lobby for Political Backing

SAN FRANCISCO—The high-tech community in general and Silicon Valley in particular have been "pathetic" when it comes to fighting the prevailing "extremist" political view in Washington that open-source software is a threat to strong intellectual property rights, according to Stanford University law professor Lawrence Lessig.

These extremists have created an intellectual property "McCarthyism" that projects the view that "if you support the idea of the public domain or free and open-source software, then you must be basically Red," said Lessig at the Open Source Business Conference here. Lessig argued that balanced national copyright policy is the best way to promote innovation.

In 1976 Congress revised the copyright laws in a way that has given large, established software, media and content producers tighter control over intellectual property rights, Lessig said. The law, he said, has made it more difficult than ever for innovators to build on earlier work even as the Internet has made it easier for people to create and distribute new technologies, content and knowledge.

This control, he contended, will limit future innovation and stem the natural vibrancy and creativity of the nations economy.

"The tradition of balance that insists on limiting the powers of monopolies and monopolists" while supporting the development of open platforms has "produced an explosion of innovation throughout our history—most importantly and most recently in this valley," Lessig said.

"That tradition is being lost, and we are doing nothing effective" to change the political climate that threatens this balance, he said.

The policy favoring strong intellectual property regulation, Lessig said, has produced "binary thinking" by "bitheads" who say "that you are either for property or you are for no property."

However, Lessig noted that in its early days as a developing nation, the United States was the most unabashed intellectual property pirate on the face of the earth; it didnt recognize the patents and copyrights of other nations. This policy helped the country industrialize and develop its domestic manufacturing capacity. However, today the United States vehemently insists that developing nations sign treaties recognizing its intellectual property rights in exchange for access to U.S. markets.

For the first 190 years of its existence, national copyright protection was limited, Lessig said. Copyrights had to be registered, a copyrighted work had to be deposited with the Library of Congress, a copyright notice had to be placed on the work, and the copyright had to be renewed after a limited period.

However, in 1976 Congress changed the law so that copyrights under most conditions were presumed rather than formally asserted, Lessig said. Copyrights became unconditional because publishers didnt have to register or post copyright notices, deposit their works or renew their copyrights, he explained.

Next page: Policy failed to anticipate the Internet.

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However, this copyright policy failed to anticipate the Internet, which revolutionized publishing because it greatly reduced the cost and ease of creating and distributing content and information.

As a result, the law has created a culture that "requires permission first—requires lawyers first" before virtually any previous work can be reproduced, revised, built upon and transformed, Lessig said. This requirement, he said, imposes "an extraordinary expense that does nothing more than burden the innovative process," including the creation of open-source software.

At the same time, "we have been totally pathetic as technologists in translating what we know about how innovation functions into terms that have meaning" to the Washington policymakers, Lessig said.

Open-source advocates should be telling Congress that a copyright policy that promotes competition between proprietary software and open-source software is good business because it promotes innovation, and innovation promotes business growth, Lessig said.

The open-source industry, Lessig said, isnt delivering a clear message to policymakers that they support copyright protection for their original work as strongly as proprietary software producers. The industry has to reframe the debate about open-source and intellectual property rights so it doesnt become cast in the simplistic "American idea of capitalism and communism," said Lessig.

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