Lessig: Open-Source Industry Must Lobby for Political Backing

Stanford Law Professor Lawrence Lessig says the open-source community has to work harder to convince government policy makers that their products will promote competition and innovation in the software industry.

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.

John Pallatto

John Pallatto

John Pallatto has been editor in chief of QuinStreet Inc.'s eWEEK.com since October 2012. He has more than 40 years of experience as a professional journalist working at a daily newspaper and...