Lawrence Lessig

"When government disappears, it's not as if paradise will take its place. When governments are gone, other interests will take their place."

"We are on the cusp of this time where I can say, "I speak as a citizen of the world" without others saying, "God, what a nut.""

"One thing we know about incentives is you can't incent a dead person. No matter what we do, Hawthorne will not produce any more works, [even if] we can give him all the money in the world."

"Americans have been selling this view around the world: that progress comes from perfect protection of intellectual property. Notwithstanding the fact that the most innovative and progressive space we've seen — the Internet — has been the place where intellectual property has been least respected. You know, facts don't get in the way of this ideology."

"Our problem is that lawyers have taught us that there is only one kind of economic market for innovation out there and it is this kind of isolated inventor who comes up with an idea and then needs to be protected. That is a good picture of maybe what pharmaceutical industry does. It's a bad picture of what goes on, for example, in the context of software development, in particular. In the context of software development, where you have sequential and complementary developments, patents create an extraordinarily damaging influence on innovation and on the process of developing and bringing new ideas to market. So the particular mistake that lawyers have compounded is the unwillingness to discriminate among different kinds of innovation. We really need to think quite pragmatically about whether intellectual property is helping or hurting, and if you can't show it's going to help, then there is no reason to issue this government-backed monopoly."

"There’s going to be an i-9/11 event. Which doesn’t necessarily mean an Al Qaeda attack, it means an event where the instability or the insecurity of the internet becomes manifest during a malicious event which then inspires the government into a response. You’ve got to remember that after 9/11 the government drew up the Patriot Act within 20 days and it was passed. … So I was having dinner with Richard Clarke and I asked him if there is an equivalent, is there an i-Patriot Act just sitting waiting for some substantial event as an excuse to radically change the way the internet works. He said “of course there is”."

"I received an email from JSTOR four days before Aaron died, from the president of JSTOR, announcing, celebrating that JSTOR was going to release all of these journal articles to anybody around the world who wanted access — exactly what Aaron was fighting for. And I didn’t have time to send it to Aaron; I was on — I was traveling. But I looked forward to seeing him again — I had just seen him the week before — and celebrating that this is what had happened. So, all of us think there are a thousand things we could have done, a thousand things we could have done, and we have to do, because Aaron Swartz is now an icon, an ideal. He is what we will be fighting for, all of us, for the rest of our lives. … Every time you saw Aaron, he was surrounded by five or 10 different people who loved and respected and worked with him. He was depressed because he was increasingly recognizing that the idealism he brought to this fight maybe wasn’t enough. When he saw all of his wealth gone, and he recognized his parents were going to have to mortgage their house so he could afford a lawyer to fight a government that treated him as if he were a 9/11 terrorist, as if what he was doing was threatening the infrastructure of the United States, when he saw that and he recognized how — how incredibly difficult that fight was going to be, of course he was depressed. Now, you know, I’m not a psychiatrist. I don’t know whether there was something wrong with him because of — you know, beyond the rational reason he had to be depressed, but I don’t — I don’t — I don’t have patience for people who want to say, "Oh, this was just a crazy person; this was just a person with a psychological problem who killed himself." No. This was somebody — this was somebody who was pushed to the edge by what I think of as a kind of bullying by our government. A bullying by our government."

"A time is marked not so much by ideas that are argued about as by ideas that are taken for granted. The character of an era hangs upon what needs no defense. Power runs with ideas that only the crazy would draw into doubt. The "taken for granted" is the test of sanity; "what everyone knows" is the line between us and them. This means that sometimes a society gets stuck. Sometimes these unquestioned ideas interfere, as the cost of questioning becomes too great. In these times, the hardest task for social or political activists is to find a way to get people to wonder again about what we all believe is true. The challenge is to sow doubt."

"All around us are the consequences of the most significant technological, and hence cultural, revolution in generations. This revolution has produced the most powerful and diverse spur to innovation of any in modern times. Yet a set of ideas about a central aspect of this prosperity — "property" — confuses us. This confusion is leading us to change the environment in ways that will change the prosperity. Believing we know what makes prosperity work, ignoring the nature of the actual prosperity all around, we change the rules within which the Internet revolution lives. These changes will end the revolution."

"We live in a world with "free" content, and this freedom is not an imperfection. We listen to the radio without paying for the songs we hear; we hear friends humming tunes that they have not licensed. We tell jokes that reference movie plots without the permission of the directors. We read our children books, borrowed from a library, without paying the original copyright holder for the performance rights."

"In arguing for increasing content owners' control over content users, it's not sufficient to say "They didn't pay for this use.""

"Creation always involves building upon something else. There is no art that doesn't reuse. And there will be less art if every reuse is taxed by the appropriator. Monopoly controls have been the exception in free societies; they have been the rule in closed societies."

"While control is needed, and perfectly warranted, our bias should be clear up front: Monopolies are not justified by theory; they should be permitted only when justified by facts. If there is no solid basis for extending a certain monopoly protection, then we should not extend that protection. This does not mean that every copyright must prove its value initially. That would be a far too cumbersome system of control. But it does mean that every system or category of copyright or patent should prove its worth. Before the monopoly should be permitted, there must be reason to believe it will do some good — for society, and not just for monopoly holders."

"The current term of protection for software is the life of an author plus 70 years, or, if it's work-for-hire, a total of 95 years. This is a bastardization of the Constitution's requirement that copyright be for "limited times." By the time Apple's Macintosh operating system finally falls into the public domain, there will be no machine that could possibly run it. The term of copyright for software is effectively unlimited."

"While the creative works from the 16th century can still be accessed and used by others, the data in some software programs from the 1990s is already inaccessible. Once a company that produces a certain product goes out of business, it has no simple way to uncover how its product encoded data. The code is thus lost, and the software is inaccessible. Knowledge has been destroyed."

"I would dramatically reduce the safeguards for software — from the ordinary term of 95 years to an initial term of 5 years, renewable once. And I would extend that government-backed protection only if the author submitted a duplicate of the source code to be held in escrow while the work was protected. Once the copyright expired, that escrowed version would be publicly available from the copyright office. Most programmers should like this change. No code lives for 10 years, and getting access to the source code of even orphaned software projects would benefit all. More important, it would unlock the knowledge built into this protected code for others to build upon as they see fit. Software would thus be like every other creative work — open for others to see and to learn from."

"The problems with software are just examples of the problems found generally with creativity. Our trend in copyright law has been to enclose as much as we can; the consequence of this enclosure is a stifling of creativity and innovation. If the Internet teaches us anything, it is that great value comes from leaving core resources in a commons, where they're free for people to build upon as they see fit."

"If you understand this refrain, you're gonna' understand everything I want to say to you today. It has four parts:"

"In 1774, free culture was born. In a case called Donaldson v. Beckett in the House of Lords in England, free culture was made because copyright was stopped. In 1710, the statute had said that copyright should be for a limited term of just 14 years. But in the 1740s, when Scottish publishers started reprinting classics — you gotta' love the Scots — the London publishers said "Stop!" They said, "Copyright is forever!"... These publishers demanded a common-law copyright that would be forever. In 1769, in a case called Miller v. Taylor, they won their claim, but just five years later, in Donaldson, Miller was reversed, and for the first time in history, the works of Shakespeare were freed, freed from the control of a monopoly of publishers. Freed culture was the result of that case."

"That free culture was carried to America; that was our birth — 1790. We established a regime that left creativity unregulated. Now it was unregulated because copyright law only covered "printing." Copyright law did not control derivative work. And copyright law granted this protection for the limited time of 14 years."

"Forget the 18th century, the 19th century, even at the birth of the 20th century. Here's my favorite example, here: 1928, my hero, Walt Disney, created this extraordinary work, the birth of Mickey Mouse in the form of Steamboat Willie. But what you probably don't recognize about Steamboat Willie and his emergence into Mickey Mouse is that in 1928, Walt Disney, to use the language of the Disney Corporation today, "stole" Willie from Buster Keaton's "Steamboat Bill." It was a parody, a take-off; it was built upon Steamboat Bill. Steamboat Bill was produced in 1928 — no 14 years — just take it, rip, mix, and burn, as he did to produce the Disney empire."

"Now the Disney Corporation could do this because that culture lived in a commons, an intellectual commons, a cultural commons, where people could freely take and build. It was a lawyer-free zone. It was culture, which you didn't need the permission of someone else to take and build upon. That was the character of creativity at the birth of the last century. It was built upon a constitutional requirement that protection be for limited times, and it was originally limited. Fourteen years, if the author lived, then 28, then in 1831 it went to 42, then in 1909 it went to 56, and then magically, starting in 1962, look — no hands, the term expands. Eleven times in the last 40 years it has been extended for existing works — not just for new works that are going to be created, but existing works. The most recent is the Sonny Bono copyright term extension act."

"The meaning of this pattern is absolutely clear to those who pay to produce it. The meaning is: No one can do to the Disney Corporation what Walt Disney did to the Brothers Grimm. That though we had a culture where people could take and build upon what went before, that's over. There is no such thing as the public domain in the minds of those who have produced these 11 extensions these last 40 years because now culture is owned."

"Remember the refrain: We always build on the past; the past always tries to stop us. Freedom is about stopping the past, but we have lost that ideal."

"We have a massive system to regulate creativity. A massive system of lawyers regulating creativity as copyright law has expanded in unrecognizable forms, going from a regulation of publishing to a regulation of copying."

"Law and technology produce, together, a kind of regulation of creativity we've not seen before."

"Here's a simple copyright lesson: Law regulates copies. What's that mean? Well, before the Internet, think of this as a world of all possible uses of a copyrighted work. Most of them are unregulated. Talking about fair use, this is not fair use; this is unregulated use. To read is not a fair use; it's an unregulated use. To give it to someone is not a fair use; it's unregulated. To sell it, to sleep on top of it, to do any of these things with this text is unregulated. Now, in the center of this unregulated use, there is a small bit of stuff regulated by the copyright law; for example, publishing the book — that's regulated. And then within this small range of things regulated by copyright law, there's this tiny band before the Internet of stuff we call fair use: Uses that otherwise would be regulated but that the law says you can engage in without the permission of anybody else. For example, quoting a text in another text — that's a copy, but it's a still fair use. That means the world was divided into three camps, not two: Unregulated uses, regulated uses that were fair use, and the quintessential copyright world. Three categories. Enter the Internet. Every act is a copy, which means all of these unregulated uses disappear. Presumptively, everything you do on your machine on the network is a regulated use. And now it forces us into this tiny little category of arguing about, "What about the fair uses? What about the fair uses?" I will say the word: To hell with the fair uses. What about the unregulated uses we had of culture before this massive expansion of control?"

"Now, here's the thing you've got to remember. You've got to see this. This is the point. (And Jack Valenti misses this.) Here's the point: Never has it been more controlled ever. Take the addition, the changes, the copyrights turn, take the changes to copyrights scope, put it against the background of an extraordinarily concentrated structure of media, and you produce the fact that never in our history have fewer people controlled more of the evolution of our culture. Never."

"Here's a story: There was a documentary filmmaker who was making a documentary film about education in America. And he's shooting across this classroom with lots of people, kids, who are completely distracted at the television in the back of the classroom. When they get back to the editing room, they realize that on the television, you can barely make out the show for two seconds; it's "The Simpsons," Homer Simpson on the screen. So they call up Matt Groening, who was a friend of the documentary filmmaker, and say, you know, Is this going to be a problem? It's only a couple seconds. Matt says, No, no, no, it's not going to be a problem, call so and so. So they called so and so, and so and so said call so and so. Eventually, the so and so turns out to be the lawyers, so when they got to the lawyers, they said, Is this going to be a problem? It's a documentary film. It's about education. It's a couple seconds. The so and so said 25,000 bucks. 25,000 bucks?! It's a couple seconds! What do you mean 25,000 bucks? The so and so said, I don't give a goddamn what it is for. $25,000 bucks or change your movie. Now you look at this and you say this is insane. It's insane. And if it is only Hollywood that has to deal with this, OK, that's fine. Let them be insane. The problem is their insane rules are now being applied to the whole world. This insanity of control is expanding as everything you do touches copyrights."

"It's insane. It's extreme. It's controlled by political interests. It has no justification in the traditional values that justify legal regulation. And we've done nothing about it. We're bigger than they are. We've got rights on our side. And we've done nothing about it. We let them control this debate. Here's the refrain that leads to this: They win because we've done nothing to stop it."

"J. C. Watts is the only black member of the Republican Party in leadership. He's going to resign from Congress. He's been there seven and a half years. He's had enough. Nobody can believe it. Nobody in Washington can believe it. ... In an interview two days ago, Watts said, Here's the problem with Washington: "If you are explaining, you are losing." If you are explaining, you're losing. It's a bumper sticker culture. People have to get it like that, and if they don't, if it takes three seconds to make them understand, you're off their radar screen. Three seconds to understand, or you lose. This is our problem. Six years after this battle began, we're still explaining. We're still explaining and we are losing. They frame this as a massive battle to stop theft, to protect property. ... They extend copyrights perpetually. They don't get how that in itself is a form of theft. A theft of our common culture. We have failed in getting them to see what the issues here are and that's why we live in this place where a tradition speaks of freedom and their controls take it away."

"If you don't do something now, this freedom that you built, that you spend your life coding, this freedom will be taken away. Either by those who see you as a threat, who then invoke the system of law we call patents, or by those who take advantage of the extraordinary expansion of control that the law of copyright now gives them over innovation. Either of these two changes through law will produce a world where your freedom has been taken away. And, If you can't fight for your freedom . . . you don't deserve it."

"This is not a left and right issue. This is the important thing to recognize: This is not about conservatives versus liberals. In our case, in Eldred, we have this brief filed by 17 economists, including Milton Friedman, James Buchanan, Ronald Kost, Ken Arrow, you know, lunatics, right? Left-wing liberals, right? Friedman said he'd only join if the word "no-brainer" existed in the brief somewhere, like this was a complete no-brainer for him. This is not about left and right. This is about right and wrong. That's what this battle is."

"I believe it would be right for common sense to revolt against the extreme claims made today on behalf of "intellectual property." What the law demands today is increasingly as silly as a sheriff arresting an airplane for trespass. But the consequences of this silliness will be much more profound."

"A free culture has been our past, but it will only be our future if we change the path we are on right now. Like Stallman's arguments for free software, an argument for free culture stumbles on a confusion that is hard to avoid, and even harder to understand. A free culture is not a culture without property; it is not a culture in which artists don't get paid. A culture without property, or in which creators can't get paid, is anarchy, not freedom. Anarchy is not what I advance here. Instead, the free culture that I defend in this book is a balance between anarchy and control. A free culture, like a free market, is filled with property. It is filled with rules of property and contract that get enforced by the state. But just as a free market is perverted if its property becomes feudal, so too can a free culture be queered by extremism in the property rights that define it. That is what I fear about our culture today. It is against that extremism that this book is written."

"There has never been a time in history when more of our "culture" was as "owned" as it is now. And yet there has never been a time when the concentration of power to control the uses of culture has been as unquestioningly accepted as it is now."

"Overregulation stifles creativity. It smothers innovation. It gives dinosaurs a veto over the future. It wastes the extraordinary opportunity for a democratic creativity that digital technology enables. In addition to these important harms, there is one more that was important to our forebears, but seems forgotten today. Overregulation corrupts citizens and weakens the rule of law. The war that is being waged today is a war of prohibition. As with every war of prohibition, it is targeted against the behavior of a very large number of citizens. According to The New York Times, 43 million Americans downloaded music in May 2002. According to the RIAA, the behavior of those 43 million Americans is a felony. We thus have a set of rules that transform 20 percent of America into criminals."

"By insisting on the Constitution's limits to copyright, obviously Eldred was not endorsing piracy. Indeed, in an obvious sense, he was fighting a kind of piracy — piracy of the public domain. When Robert Frost wrote his work and when Walt Disney created Mickey Mouse, the maximum copyright term was just fifty-six years. Because of interim changes, Frost and Disney had already enjoyed a seventy-five-year monopoly for their work. They had gotten the benefit of the bargain that the Constitution envisions: In exchange for a monopoly protected for fifty-six years, they created new work. But now these entities were using their power — expressed through the power of lobbyists' money — to get another twenty-year dollop of monopoly. That twenty-year dollop would be taken from the public domain. Eric Eldred was fighting a piracy that affects us all."

"Some people view the public domain with contempt. In their brief before the Supreme Court, the Nashville Songwriters Association wrote that the public domain is nothing more than "legal piracy." But it is not piracy when the law allows it; and in our constitutional system, our law requires it. Some may not like the Constitution's requirements, but that doesn't make the Constitution a pirate's charter. As we've seen, our constitutional system requires limits on copyright as a way to assure that copyright holders do not too heavily influence the development and distribution of our culture. Yet, as Eric Eldred discovered, we have set up a system that assures that copyright terms will be repeatedly extended, and extended, and extended. We have created the perfect storm for the public domain. Copyrights have not expired, and will not expire, so long as Congress is free to be bought to extend them again."

"It is valuable copyrights that are responsible for terms being extended. Mickey Mouse and "Rhapsody in Blue." These works are too valuable for copyright owners to ignore. But the real harm to our society from copyright extensions is not that Mickey Mouse remains Disney's. Forget Mickey Mouse. Forget Robert Frost. Forget all the works from the 1920s and 1930s that have continuing commercial value. The real harm of term extension comes not from these famous works. The real harm is to the works that are not famous, not commercially exploited, and no longer available as a result."

"Of all the creative work produced by humans anywhere, a tiny fraction has continuing commercial value. For that tiny fraction, the copyright is a crucially important legal device. For that tiny fraction, the copyright creates incentives to produce and distribute the creative work. For that tiny fraction, the copyright acts as an "engine of free expression." But even for that tiny fraction, the actual time during which the creative work has a commercial life is extremely short. As I've indicated, most books go out of print within one year. The same is true of music and film. Commercial culture is sharklike. It must keep moving. And when a creative work falls out of favor with the commercial distributors, the commercial life ends."

"Now that copyrights can be just about a century long, the inability to know what is protected and what is not protected becomes a huge and obvious burden on the creative process. If the only way a library can offer an Internet exhibit about the New Deal is to hire a lawyer to clear the rights to every image and sound, then the copyright system is burdening creativity in a way that has never been seen before because there are no formalities."

"The most powerful and sexy and well loved of lobbies really has as its aim not the protection of "property" but the rejection of a tradition. Their aim is not simply to protect what is theirs. Their aim is to assure that all there is is what is theirs. It is not hard to understand why the warriors take this view. It is not hard to see why it would benefit them if the competition of the public domain tied to the Internet could somehow be quashed."

"A simple idea blinds us, and under the cover of darkness, much happens that most of us would reject if any of us looked. So uncritically do we accept the idea of property in ideas that we don't even notice how monstrous it is to deny ideas to a people who are dying without them. So uncritically do we accept the idea of property in culture that we don't even question when the control of that property removes our ability, as a people, to develop our culture democratically. Blindness becomes our common sense. And the challenge for anyone who would reclaim the right to cultivate our culture is to find a way to make this common sense open its eyes. So far, common sense sleeps. There is no revolt. Common sense does not yet see what there could be to revolt about."

"When it has become silly to suppose that the role of our government should be to "seek balance," then count me with the silly, for that means that this has become quite serious indeed. If it should be obvious to everyone that the government does not seek balance, that the government is simply the tool of the most powerful lobbyists, that the idea of holding the government to a different standard is absurd, that the idea of demanding of the government that it speak truth and not lies is just naïve, then who have we, the most powerful democracy in the world, become?"

"It might be crazy to expect a high government official to speak the truth. It might be crazy to believe that government policy will be something more than the handmaiden of the most powerful interests. It might be crazy to argue that we should preserve a tradition that has been part of our tradition for most of our history — free culture. If this is crazy, then let there be more crazies. Soon."

"The danger in media concentration comes not from the concentration, but instead from the feudalism that this concentration, tied to the change in copyright, produces. It is not just that there are a few powerful companies that control an ever expanding slice of the media. It is that this concentration can call upon an equally bloated range of rights — property rights of a historically extreme form — that makes their bigness bad."

"We Americans have a long history of fighting "big," wisely or not. That we could be motivated to fight "big" again is not something new. It would be something new, and something very important, if an equal number could be rallied to fight the increasing extremism built within the idea of "intellectual property." Not because balance is alien to our tradition; indeed, as I've argued, balance is our tradition. But because the muscle to think critically about the scope of anything called "property" is not well exercised within this tradition anymore. If we were Achilles, this would be our heel. This would be the place of our tragedy."

"I've told a dark story. The truth is more mixed. A technology has given us a new freedom. Slowly, some begin to understand that this freedom need not mean anarchy. We can carry a free culture into the twenty-first century, without artists losing and without the potential of digital technology being destroyed. ... Common sense must revolt. It must act to free culture. Soon, if this potential is ever to be realized."

"Common sense is with the copyright warriors because the debate so far has been framed at the extremes — as a grand either/or: either property or anarchy, either total control or artists won't be paid. If that really is the choice, then the warriors should win. The mistake here is the error of the excluded middle. There are extremes in this debate, but the extremes are not all that there is. There are those who believe in maximal copyright — "All Rights Reserved" — and those who reject copyright — "No Rights Reserved." The "All Rights Reserved" sorts believe that you should ask permission before you "use" a copyrighted work in any way. The "No Rights Reserved" sorts believe you should be able to do with content as you wish, regardless of whether you have permission or not. ... What's needed is a way to say something in the middle — neither "all rights reserved" nor "no rights reserved" but "some rights reserved" — and thus a way to respect copyrights but enable creators to free content as they see fit. In other words, we need a way to restore a set of freedoms that we could just take for granted before."