ILAW: Faculty Wrap Up, Q & A

We've arrived at the final session here @ ILAW, wherein the participants get to ask the faculty questions about any part of the program, and the faculty does its very best to answer.

Larry Lessig: I want to say a couple words. This is the first chance Stanford has had to welcome the Berkman Center and the program here to Stanford. A round of applause for these folks, as well as to those supporting the program here at Stanford.

For this final session we've asked Charlie Nesson to moderate.

CN: I think it would be best if each of us could ask a question after reflecting on this week. I found myself during the week in the slightly uncomfortable position of being an RIAA advocate, when ordinarily  I am "left of Larry."

Think, each of you, in terms of a question for one of the others. I will ask Terry a question first.

Here's my question: The tension I found within myself has to do with the issue of digital music. I felt in tension with Terry's vision of the future in terms of copyright. Question: would we like to see a world where people buy their music through something like iTunes?

Terry, are you in favor of iTunes? Do you see it as a viable alternative to your proposed system?

If yes, will an iTunes model thrive if people can get music for free? My answer to that is "no."

The suggestion is that if iTunes is going to thrive, it will depend on a balance being struck. Will a crash of the copyright system lead to a change in copyright, or a change in the Net?

Terry: I am going to do this briefly, so we can have audience Q & A. My forthcoming book is in two parts: how did we get in this pickle? How do we get out of it? Chapter four is a proposed solution to the current mess that maps to your proposal pretty well. It would involve lots of variations on iTunes. It would be better than the situation we currently have, yes. But there are three disadvantages: 1/it would retain the current structure of music and film industries, 2/it would preserve the distortrions associated with monopoly pricing, and 3/the marketing systems impose some constraints on the malleability of product.

So it would be better than it is now. But it would fail to realize fully the promise of the Internet.

The concern: provoking the dinosaurs so they will attack the Net and destroy it.  I think we'd all be better off if we change copyright law and not the structure of the Net.

CN: Now to your question, Terry. 

Terry: Jonathan, should we have a zoned Internet or a global Internet?

JZ: On the one hand a cantonized Net seems antithetical to what the Internet is about. At the same time, who is anyone to say anything about what a country decides for itself? China is a free market, but by most measures not a free society. Professor James Boyle says there's a libertarian "gotcha" with the Net; that you have to take the "bad" with the good. But this is breaking free from that; China can have the Net it wants.

This is a hard question.

My question, now, over to you, Larry. Larry, what is the right political process by which we can effect change? The legal system? Technology? Congress?

Larry: That's a great question. The thing that has surprised me in the last year is the recognition that what we believe as a culture is that all politics is broadcast. We all validate this. But blogspace is the most important inversion of this truth. These conversations should not be broadcast. Broadcast is awful. When someone participates as a citizen in blogspace, they are arguing in a small group, as in a jury. They are affecting each other, persuading.

Politics in the next five years will be about increasing conversation from the bottom-up about these things. We're at the edge of a glimpse of this. We're not Ross Perot's town hall. If this thing grows, I think it will be extraordinary.

Someone ask Yochai a question.

Participant: One of the issues Europe is dealing with is copyright and database protection. This has evidently been on the curriculum here in the past. Can you comment on this?

Yochai: So: creating an IP right for databases. The US has found that facts are not capable of being protected. Some portion of the database industry has been trying to fight this for years. They have largely not succeeded. The ultimate costs to scientific research would be large. The reality is that there is a robust database market. So there is no economic reason for such protection.

So the reason we're not talking about this at ILAW this year: I for one do not think database protection is as close to being passed as I did three years ago. It is only one of the many parts of the enclosure movement, whereby in the transition to info. economy, the idea of strengthenng IP has had tremendous intellectual purchase. But it continues to fail. I consider this a small glimmer of hope.

Participant: This question is not directed to anyone in particular. I think with our current laws we are forcing many different groups of people to blatantly ignore the law; people who are sharing music via P2P, people in developing countries who engage in softare piracy. By criminalizing so much, we are *eroding* respect for the law. What's the psychological effect of this?

Larry: It's a great question. In the US, there are many examples of the prohibition mentality. What does it do to people to live a life in which they do not obey the rule of law? We don't have a good way of accounting for this. I think Fred von Lohmann was referring to this when he spoke about "collateral damage." If you did what Terry is talking about, these people wouldn't be criminals anymore.

[...]

We should be asking ourselves: what's the sense in the legal situation we have right now?

[...]

CN: I feel it acutely as a law professor in particular. We must teach our students ethics. I teach evidence. In a sense we practice law in a zone between truth and what is known by the other side about a situation. The kids I teach have all violated the drinking, drugs, and generally, copyright laws. So this is tough. It's one of the biggest questions. At some point it becomes an abuse of the law, and its credibility crumbles.

Terry Fisher: I have a story RE Napster. It had just been declared illegal. I gave a lecture in Brazil and I described the system. I asked for how many have used Napster. Half raised their hands. And these are all lawyers and judges.

Consider Sony. It appears that two Supreme Court justices owned and were using VCRs. This was no doubt an element in the decision.

Participant: I'd like clarification from Yochai regarding the poltical power of the Internet. I am curious about how the Internet can contribute to alliances of people within cities. How do you relate your concept of cultural democracy to poltical mobilization? Should I be hopeful about the Internet in this respect?

Yochai: You have three questions, here. The first regards the digital divide. The second: does Internetworking help political mobalization accross geographic lines? I think this is an easy answer: yes.  The Internet enables massively decentralized coordination and transcends geographic barriers. I do think that with regard to the digital divide, it is important that we continue to invest and that we pool resources. Third question: in using the Internet like this, do we fragment our communal identity? There I think we see the destabilization of old community lines but also the building of new ones--new communities of interest.

CN: Everybody has a question, don't they? I'd like for everyone to write a question down on a piece of paper and pass it to the front. [Collects the sheets of paper.]

Larry: Here's a question: if forms of media such as TV are so powerful, why not use them to publicize programs like this? The short answer: this story takes more than ten seconds to convey and to understand. And they may not how we dress.

CN: Here's a more personal question. How did you enter this area (Internet law)?

JZ: It was Internet that brought me into the law, not the other way around. I was 12 years old and moderating a CompuServe forum. No one knew how old or how dorky I was. Well, perhaps it was clear how dorky the whole thing was, but you get the point. I was fascinated at the thought that these communities governed themselves, and I realized this was a question of law.

Larry: For me it was an article written by Julian Dibbell, called "A Rape in Cyberspace." It occured to me that cyberspace is a place where people don't yet know their own politics. As a teacher, I wanted to bypass getting answers from students based on what they already believed they knew.

Yochai: I was focused on property rules, on market structures. I stumbled over a chance to write an article about email law. I realized this was happening now, not in the past. That therefore there was an opportunity for change.

Terry: I had been interested in property rights for a long time. It implicates power. I have been teaching property for 19 years. Then on to IP law, which I taught for 10 years. The most controversial area in IP is IP on the Net. This isn't my primary zone. The Internet only one aspect of what I focus on and teach.

CN: I took a course on Univac One in 1958. Then nothing much happened until Jonathan Zittrain showed up in a class of mine. I had a grant from a company and spent them on 20 Mac Quadras; we connected all the students. Jonathan was the guy who made it all work. So my interest was sparked by the Internet's power for teaching.

JZ: Here's a question--How much do people think the US is the epicenter of cyberlaw?

CN: And another question--who is going to take Larry's ideas and run with them? Is it possible to govern the Net?

Larry: One important point to makes: the Internet is already governed. The question is, do we do something to embed good values into the architecture?

Participant: Is it possible to establish a global code for the Internet?

Larry: It is possible. It would solve the "zoned" problem. But I don't think we'll do it. We're are different peoples.

JZ: I worry that the organic processes for governing the Internet worked because they were happening in the backwaters. Now the magic is bleeding away. Lawyers are joining the geeks. Before you know it, it's no fun anymore. "Amateurs," who love the Net, are driven out, and you get stalemate. Doing it by committee might not work.

Lessig: Question--Would you rather developing countries use free software rather than pirate software? Easy answer: use free software. Another question--how should Bill Gates answer? Well, he should hope they pirate the software.

Yochai: [...] Are you libertarian? We're all somewhat progressive, libertarian. We generally support fostering autonomy; we want to create structures of freedom. But I think of myself as a pragmatist...and strategies that lead to moral outcomes are highly contingent. Sometimes "hands-off" will do the job. [...]

Terry: I agree. Question--what's the appropriate role of the government in Internet questions? The sensible approach is a pragmatic one. Another question--How would a system like yours provide compensation for creators, as compared to the current situation? My answer is that my system has the very same mechanism for compensation.

There is a classic mistake in this question. It suggests that my system is an imposition of government in a free system. But the fact is that the current copyright system is a massive government intervention in what we do. It's a government-granted monopoly. The most extensive abridgement on the freedom of speech is the copyright system. This is heavy regulation. Mine is simply a different form of government intervention. So the question suggests an American bias against visible intervention.

Larry: [...] Isn't it odd that iTunes offers all songs @ 99 cents. The same price for a song by the Beatles and one by Zittrain. In your system, how is this addressed?

Terry: Both the current system and my system are approximations.

Larry: In the context of the Net, perhaps we could have more types of differentiation?

Terry: The scheme does vary--you're paid according to how popular the work is.

[...]

Elizabeth Rader: I have been buying CDs on eBay. It is an amazing mechanism whereby people pay the pirce that they value the CD at.

Terry: Another factor in eBay: scarcity. This doesn't exist in the iTunes model.

[...]

What happens when scarcity disappears?

[...]

CN: [...] It ought to cost something to protect a copyrighted work.

Larry: Imagine there was a compulsory license for every out-of-print recording. It would enable people to distribute the work, but also allow labels to see what works have continued popularity. [...] We could also get all sorts of versions of a work. This is halfway between the total compulsory model and the Napster model.

JZ: Two final questions--why do you focus on the Internet? You seem to be exceptionalists. Also, so much advocacy is intertwined with what you teach. Question--what next? Will Internet law be here a few years from now?

Larry: There were two farmers who had a farm by an airport; because of the noise, chickens kept flying up and bumping against the walls and dying. Technically the airplanes were "trespassing." Technically, they owned and could auction off the air over their heads. They brought a case. The Supreme  Court said, simply, "Common sense revolts at the idea." This answers your question, Jonathan.

Jonathan: It does? How?

Larry: Reason could operate here because there were not powerful interests seeing the opportunity for making money. If they see the opportunity for control, as on the Internet, it ends up as a land grab. So all of us have an important role in pointing out this issue. There's a land grab going on.

JZ: So this is why all this has an Oliver Stone subtext for you?

Larry: Nothing by Oliver Stone has subtext.

JZ: Right; you're far more subtle, Larry.

CN: Related question: Is cyberlaw a specialty or a real field of law? I say it's a field.

[...]

Larry: This has been an extraordinary week; please join me in thanking these extraordinary people.  [Applause.]

Terry: Two people remain to be thanked: one is Robyn Mintz. And the other is Larry. This is the fifth time we put on the program. It has during this time been evolving. The biggest change, however, has been from the last program to this one. The person responsible for this is Larry. So thanks to Larry for this new shape.