Open Education Interview:
Lawrence Lessig

May 1, 2003

Open Education (a grassroots organization advocating for open educational content - developed by individual educators or as part of a community of practice) recently interviewed Professor Lawrence Lessig from Stanford Law School. Professor Lessig is a recognized leader in cyberlaw, promoting a balance of fairness in content creation and public use - a vision often in conflict with large media/content corporations.

Open Education: What’s happening in technology that is impacting creativity, freedom, and innovation?
Lessig: There’s an increasing push by content donors to find ways to control the distribution of content - to protect their 20th century business model for making money with content. These technologies are increasingly interfering with the end-to-end freedom that the Internet originally created, and interfering with the opportunity of the Internet to create great innovation. The concern is that, to protect content the way they did in the 20th century, they will have to defeat the Internet that was designed for the 21st.

Open Education: The “spinners” of the entertainment and publishing industries have achieved a remarkable task. They have managed to cast their cause as the cause of freedom, and the people/Internet you represent as thieves and terrorists. Why has their message been broadcast so effectively to lawmakers?
Lessig: One problem has been that law makers, or people who don’t focus on this problem, try to see what’s the other side to the copyright owners. The other side of the copyright owners increasingly looks like it’s just a bunch of pirates. So if you have a choice between piracy and property, most people choose property. What we’ve not done well enough is to show the policy makers that there’s a third side to this debate. It’s not just piracy and property advocates, it’s also a vision of intellectual property which is much more balanced, much more expansive in its freedoms that it guarantees, that is essential to creativity. If we succeed in making that third side more visible, it’ll be harder to see this as a choice between property and piracy.

Open Education: You seem to indicate that the Internet-savvy people, or 21st century model as you termed it, have not done their job in making their cause known. Is that the main reason why the entertainment industry seems to have the ears of the lawmakers more effectively?
Lessig: I don’t want to criticize, so I’m not saying that they haven’t done enough work. They have done a lot of work. We still have a long way to go before we have made it salient to people - why balance in the context of intellectual property is so important. That’s partly because we have not built enough models of the third side of this debate. That’s one of the reasons I’ve been working so hard in the context of the Creative Commons to attempt to do that. It’s also because we’ve been too easily associated with battles which look like just a battle in the name of pirates to be allowed to take other people’s content.

Open Education: Your message seems simple: Content is being controlled beyond the point of providing incentive to create new content. The original intent of copyright was to provide this incentive. Now it has moved to copyright holders being organizations and corporations that are using copyright to preserve a business model. As a result, innovation is stifled. In your presentation to OSCON 2002, you quoted J.C. Watts, as saying the problem with Washington is that “If you’re explaining, you’re losing”. How does that statement reflect on your work? It seems that those who propose a free and open Internet are doing a lot of explaining.
Lessig: We’re losing – we’re explaining, we’re losing. We need to get to a place where people get it so we are not spending so much time explaining. We have to do a lot more to get people to take it as second nature that content has to be balanced in its protection, so its access is assured, and people’s ability to build on it is assured as well.

Open Education: Has the Eldred case impacted your approach to addressing the concerns of the declining public commons?
Lessig: Losing in the court means that we have to do a lot more in the public space. We have to do a lot more work in convincing people of the importance of this. I’ve shifted a lot of my energies to Creative Commons, which is one place where we’ll try to do this. The real struggle now will be to make sure that we make a wide range of people aware of exactly what’s at stake, so that we can begin to build a political movement that gets reflected in the political process.

Open Education: After the Eldred case, you mentioned in your blog that the battle is now political. Are you essentially trying to take the concepts down to the grassroots level to get a ground swell movement?
Lessig: There has to be a much greater range of support in the political process for these ideas before it’ll become at all obvious to anybody that there is something here to be worried about.

Open Education: You support file sharing technologies, but not the use of these technologies to infringe of copyrights. What is your assessment of the recent Grokster/Streamcast verdict?
Lessig: I think the decision is a great example of the kind of balance that courts should have been adopting a long time ago in this context. The court there is very explicit in understanding that the system is designed in a way to enable some kind of “get around” to existing copyright laws, yet given existing laws, the technology is not illegal. If the technology is not illegal in existing law, then congress should reconsider the law, but courts should not get into the business of expanding the law or second-guessing the balance congress has struck.

Open Education: You’ve taken a legalistic approach, as expressed by the Eldred case. It’s arguable that the law itself is flawed. The law may not have envisioned a serious and sustained challenge to open source or public domain or the commons. A mechanism isn’t really in place to defend them. Do you feel that a legislative overhaul is needed and that it is not really one of jurisprudence?
Lessig: I think a legislative overhaul will be needed. The Supreme Court’s decision on Eldred says it’s up to Congress. It doesn’t say that copyright extension is a good thing. In fact there is skepticism expressed about copyright extension in both the majority and dissenting opinion. I don’t think there is any issue about the sensibility of the policy. It’s about who should be in the position to second-guess it. While I think that the court was mistaken in refusing to second-guess it -- because the issue at stake is
a constitutional limit on Congress's power, not simply a balance between competing interests that Congress must strike -- it does say that we have to spend more time getting congress to second-guess it's own prior decisions.

Open Education: Does your current approach then indicate that there isn’t a fundamental flaw in the underlying laws?
Lessig: The approach I’m taking now is to try and get the laws changed. So to the extent that I want them changed that reflects what I believe is mistaken in the way the current law is framed. I think the law needs to reflect a digital architecture, it’s a law that reflects highly expensive analog architecture, so to that extent the law needs to be updated. I don’t think that the law of copyright, in principle, is flawed. Copyright makes sense and we ought to have a system of copyright to give artists sufficient protection. The existing law has some serious problems that now Congress will have to address because the courts won’t.

Open Education: Reading through your work and transcripts of your presentations, you often have harsh words for the IT industry – accusing them of not doing enough or idly watching their fundamental freedoms erode. The solutions you’ve provided previously are to donate to EFF, write congress – what more do you expect of the end user? What do you expect of them in initiating change?
Lessig: Most in the technology industry are too busy to focus on these issues. What that means is most in the technology industry do nothing while these changes are going on around them. That’s a bad thing. The technology industry is the one that has the most to lose by this extensive re-writing of balance between innovation and protection. I understand why they aren’t doing anything. I just think it’s a bad thing.I’ve tried to push people to get more involved in policy making and getting Congress to understand exactly what is at stake here. Many of them have just not yet looked up from the work that they do to recognize what is threatening their freedom.

Open Education: You’ve often been referred to as a pessimist. Often it seems like revolutions are most effective when you are moving towards something, not from something. Do you use your pessimism as a means to cope with the reality of what is happening in copyright, or do you use it more as a means of mobilizing the people that you would like to speak to?
Lessig: Some of it is strategic, but not all of it. The consequence of my pessimism is in part, some people think it’s bad – nothing can be done. But a large part - a lot of people think “Lessig is wrong and I’m going to prove him wrong”. To the extent that it is the latter, that’s good. I think the pessimism is necessary in large part to get people to wake up to what is at stake. There is a long battle ahead, and I agree that pessimism is not the tool to move people in the future, but to a certain extent it has been essential to get them to move in the past.

Open Education: The education field has, in many ways, been the birthplace of innovation and creativity. Much of the debate of public commons has been focused on video, audio – almost a consumeristic evaluation of the impact of copyright. How does this translate into education?

Lessig: Education is dramatically affected by copyright regulation, in ways that have become so second nature that people take for granted and don’t see. The high cost of educational materials – libraries – a large part of the function of the copyright system; if we would have won the Eldred case, then a ton of material would begin to pass into the public domain that would be made available for almost free on the Internet. This would dramatically reduce the cost of libraries all across the world. Now they have to continue to buy books and acquire expensive physical objects in order to give people access content.
Similarly the ability of people to use the technology to get access to and reproduce content is dramatically affected by copyright rules. Imagine film schools that want to allow students to take film clips from old films and put them into their new films. That’s hard under the existing system. In a more balanced system, it should be a lot easier. Education has to become part of this debate. Unless it makes its interests apparent, people will not think about the significant costs to education that increased copyright protection will produce.

Open Education: Education institutions are copyright compliant organizations. These institutions are “easy-pickings for copyright holders/enforcers to make sure they get their revenue. What is needed to create change at this level where institutions are so used to being compliant?
Lessig: More education. Education about what is at stake here, what the facts are, what really is responsible for creativity, what types of protections are necessary to assure creativity. Education to make people more critical consumers of copyright law, rather than just obedience consumers. I’ve found this weird thing in the way librarians in particular are. Some are quite critical and eager to help achieve balance in this, but many of them are not at all critical. Many are quite compliant to the rules, they almost like following the rules. To the extent that’s true, that’s dangerous. If anybody has the information necessary to wean our culture off this extremism, it’s going to be our educators.

Open Education: Oct 3, 2002, in Madey vs. Duke, the US Court of Appeals for the Federal Circuit basically eliminated experimental use as defense for all practical purposes for research universities. Again, the impact is the tightening of control on universities to think and act in innovative manners. The “battle” appears to have moved into this arena now. What can we expect to happen in educational settings in the near future? Will it follow a similar trend of tightening controls and increased reliance on technology to close doors?
Lessig: They are going to become increasing enforcers of the law. The question is whether that matures into anger and frustration about being enforcers of the law or whether they just comply with this new role. I don’t think we know enough yet what it’s going to be.

Open Education: How the Creative Commons Share-Alike license relate to the GNU Free Documentation License? The FDL has been used for large projects like wikipedia, planetmath.org. Is it possible for Share-Alike content to be used in a similar FDL license project?
Lessig: The Free Documentation License is similar in some ways, and we think it’s a good license for functional works. We’ve been developing licenses that are more directly focused on regular literary works and other creative work, not directly functional. We have license options which have similar copyleft functionality in them, but I think the key is to multiply the number of licenses out there that enable machine-readable expressions of freedom. The one thing the FDL has failed to do, as has the GPL, is to enable a semantic web-like architecture that encourages machine-readable expressions of freedoms. That’s the core commitment of the Creative Commons.

Open Education: Many efforts such as Creative Commons and the Free Software Foundation have developed solid followings of "true believers" who are devoutly committed to the open source/public licensing gospel. Yet clearly the majority of the population still seems to be sold on the notion that "copyright" is something that offers protection to individuals. To many people it’s about just learning to live with the limitations imposed by copyright. For consumers, you’re slowly lulled into accepting what’s happening.
Most people also seem to feel that copyright law is incredibly complicated and therefore not something that ordinary individuals need to worry about. How is that going to change at a grass-roots level? That seems to be directly linked to your political intentions of organizing these people. How is the average consumer going to start caring about the work you’re trying to do?
Lessig: That’s a hard question. I’m not sure we have a good answer. It just takes telling the story over and over again, until people listen and get it. I don’t find many people who listen to what we have to say, and then afterwards say “yeah, well, it doesn’t seem to be important”.

I find most people who listen to what we have to say are astonished, and after they’re astonished, they begin to become activists in this. That’s why I’ve been spending so much of my time on the road trying to get people to understand this. Unfortunately, we have a lot more work to do.

Open Education: As an organization, we (Open Education) are focused on creating change at the user level. Our intentions are to make it easy for educators to share content and learning material with each other without having to go through the usual copyright routines. In the process, we feel we can also make an impact on reducing the cost of education. Based on your experience, what advice do you have for us?
Lessig: We’re very strongly pushing people to join with us in the Creative Commons exercise. This has two effects. One is, if you mark your content with the Creative Commons license and put it up on the web, that makes the content more easily available for other people to take and build upon – according the preferences you express. The second thing it does, it increasingly builds a model of content or copyright which is not a model of perfect control which dominates image of Hollywood’s content. It instead sets up a layer of content that is much more freely available. My view is that to the extent we increase the presence of this alternative – this group of people who say “I don’t believe in the extremes, I believe in something in between”, we will increasingly change the character of the debate. The debate will no longer be defined by piracy versus property. It will increasingly be a debate where there is a space in the middle that helps us show others that the extremism is not the necessary choice. I really urge people to participate in this campaign – it’s environmentalism for culture. Everyone who gets the point of environmentalism has to begin playing with this movement.

Open Education: Any direction you feel our efforts should best be placed in getting the word out?
Lessig: Get the word out by helping people focus on the areas where these things are being discussed. Creative Commons is one place, Public Knowledge, EFF – these are organizations helping people understand this stuff. Help carry the message in as many contexts as we can.

 
This work is licensed under a Creative Commons License.

This work is licensed under a Creative Commons License