Papadopoulos	Lessig

Sun CTO Greg Papadopoulos met recently with Stanford Law professor Larry Lessig, one of today's leading thinkers around intellectual property rights in cyberspace, to discuss this issue. Below are highlights from that discussion.

Greg: What is the relationship between intellectual property, the control of it, and innovation?

Larry: Intellectual property is critical to building the right incentives in many industries for creating new innovations. This was the great insight of our founding fathers who recognized the need to protect patents and copyrights in certain fields, to create incentives that otherwise wouldn't be there. What's counter-intuitive about intellectual property is that there can be too much of a good thing. If you exercise too much control, or if a law grants creators or innovators too much control, new innovation can be stifled. So the problem for policymakers, and companies dealing in this context, is striking the right balance between the control that's necessary to produce the profits that will support new innovation, and the access or freedom of others to build on top of that innovation and make it worth more.

Greg: Where do you think we are in the balance? What direction are we headed?

Larry: Right now we're in an obsessively extreme IP environment, especially in the context of copyright. The Internet has created fear within the content industry that they're going to lose everything if they aren't allowed to exercise perfect control over content. So they're building technology and legal infrastructures to give them more control over innovation than they've ever had before. The same thing is happening with patents for business methods and software, presenting a similar problem.

Greg: This is counter-intuitive because the content industry talks about the mayhem of digital being able to make perfect copies, but it can also allow perfect control.

Larry: It allows perfect control if the digital rights management technologies are layered into the infrastructure of the Internet. My concern is that this perfect control will stifle an extraordinary amount of innovation. Here's a simple example — think about how photography flourished. Originally, there was a design of a camera by Daguerre, which was the Daguerreotype — cumbersome, expensive — with a tiny market. Then, Eastman invents the Kodak in 1888 — simple, cheap technology for taking pictures — and the market takes off. At that time, the law was trying to figure out whether to allow people to take pictures without clearing permissions first or whether permission was required before capturing an image of a person or building. Quickly, the law decided you don't need permission — you could capture images and share them without worrying about legal rules. That encouraged an extraordinary consumer market around photography, and that freedom was, in part, what made it possible.

Greg: And that freedom built a commercial market for photography.

Larry: Right. The total commercial market was huge, because both the consumer and professional markets could work together. Now, if they'd gone the other way and said you needed to clear permissions, you can imagine that system being regulated by the law and the market would've been much smaller. This is the same thing facing digital technologies. Fifty-seven percent of teenagers, according to a recent Pugh Trust study, have produced content that they've posted on the Internet. This is a generation of not just consumers, but creators. If we lock down all content, using really heavy digital rights management (DRM), the opportunity for people to be creators using this content will be destroyed. The market will be a fraction of what it could be if only we struck a better balance.

Greg: I'd like to zero in on that. Giving people freedom to do derivative works ultimately grows a market, but it also gives an opportunity for our legal system to judge whether or not this is an appropriate use of the copyrighted work, yes?

Larry: Yes. The point is always to avoid the extremes. It's both the extreme of perfect control that's bad and the extreme of insufficient control that's bad, because you need to strike this balance in order to create incentives, both for copyright owners and those who innovate outside of these copyrights.

Greg: What is the principle behind copyright and the concept of fair use?

Larry: Before the digital age, there were three uses of copyrighted works. First there was free use. Reading a book is not fair use of the book, it's free use because it doesn't trigger copyright — no copy is produced when you read a book. Then there was regulated use. Publishing a book is regulated by copyright law, as it should be, to create the incentives necessary for people to produce great new work. The third type was fair use which covered uses that otherwise would have been regulated by the law but which the law says ought to remain free for important innovation or social value. For example, you can quote my book in a review of my book. You're technically copying my words, but there's nothing I can do to stop you. Even if you're trying to destroy me, I'm not allowed to stop you. And that's because fair use says that those uses ought to remain free of the regulation of the law.

Greg: But if there were perfect control over the copyrighted material, I couldn't even write a critique.

Larry: That's right. Because when that three-part division moves into digital space, there are no free uses anymore. There's no way to use copyrighted, creative work in a digital network without producing a copy. So that means, by default, every single use triggers copyright law. Then fair use marches in and says, "We have the right to use this freely, even though technically it's producing a copy because of blah, blah, blah," whatever argument you want to make. Everything becomes an argument. Fair use is designed to be a balancing test between four different factors and the problem is that fair use is just the right to hire a lawyer, which for many people is no right at all.

This gets much more complicated when you imagine technologies controlling the access, because with the traditional rule, you used the work the way you wanted to, and then if it turned out that the copyright owner wanted to sue you, you defended yourself in court. But if technology is controlling your use of the work, then you can't use the work now and defend yourself later. You literally can't use the work in the way that fair use would entitle you.

Greg: There's a raging debate now with Google and Google Print, and I guess everything that Google does, arguably, makes a copy. What's going on there?

Larry: This is an extremely important debate. Google has Google-ized knowledge on the Internet. They do that by copying all of the content and then giving content owners the right to opt-out, either by putting a little sign on their Website that says No Bots, or by allowing people to explicitly remove themselves from the index. Google now wants to do this for books. They want to scan all books and give you an index, and allow you to opt-out if you don't want to be in that index. Basically, they want to Google-ize human knowledge in the way that they've Google-ized the Web. I'm a bit of a sappy academic about this, but I literally had tears in my eyes when I heard about this project because the opportunity to get access to this extraordinary range of content is something that Jefferson might have dreamed of 200 years ago. If you could scan back across all books ever published and see a vision of exactly what knowledge has been, easily using this technology, it would be an extraordinary contribution.

Greg: Can you go into more detail on that?

Larry: We just had a debate at the New York Public Library about this. At this debate, moderator Chris Anderson, who's the editor of Wired, said that there have been about 32 million books ever produced in the history of man. Of those 32 million, only about 10 percent are in the public domain in the United States. The balance of this work is all protected by copyright. And of the balance of this work protected by copyright, there's about 10 percent that's in print. So, you've got 10 percent in the public domain and 10 percent in print and the core in the middle — 25.6 million books — under copyright but not in print. The important thing about being in print is that we know who to go to to ask for permission. If it's not in print, it's almost impossible to identify. So Google has tried to set up this project, which they just renamed Google Book Search which does two things. First it scans absolutely everything, puts it all into the database, and then creates differential access to that database, depending on the status of the copyrighted work.

There are three kinds of access. For public domain access, you get full access. For work that's still under copyright, you get something they call "snippets." And then for work that's in print or where you can find the publisher, you'll get as much access as the publisher allows. Here's an example — if you go into Google (the old version) and you search on Holmes, you'll see all the books about Holmes. If the book is in the public domain, you can read the whole book. If the book is in copyright and in print, then you get as much access as the publisher allows.

Greg: You would think that publishers would be very excited about this.

Larry: You would think, especially if it's in print, that it would increase the demand and people might buy the book online right then. But here's the critical part that has created all the stir — for all the work that's still in copyright, they will guarantee at least that you get something called "snippets." You've searched on the book and you have something that looks like tear-outs from the page, with just a couple of words around the particular word that you're looking at. There's no way to read the whole book. In fact, the technology monitors if you're coming back and asking for a thousand different snippets so that you can't put it together in a book. They give you a simple way to buy a used version of it. Right now, they're not offering any advertisements and so the basic question is, "should we consider this to be a fair use of these copyrighted works?"

Greg: There have been some visceral reactions from publishers — what do you think it takes to get them to the enlightened self-interest to make it more free? Let people index it and create more demand?

Larry: We've all got to come to an enlightened self-interest about it because what has been surprising is the number of people that have lined up on the side of the authors and publishers. The authors say the problem with Google Print is that Google will basically make money and the authors won't get anything, and so therefore, it's not fair use. And the publishers say the problem is that they haven't asked for permission, and therefore, it's not fair use.

Greg: But they do have an opt-out.

Larry: They [Google] have an opt-out, but the publishers say you have to ask permission first. If fair use means you can't make money or you have to ask permission first, then there is no fair use, because fair use is the right to use the work and make money on top of it, because that encourages new industries to do new things. If Google has to ask permission, then think again about the 25 million books that are in copyright but out of print. The copyright system for old works is the most inefficient property system ever created — there's no list of copyright owners, there's no place to go. So, if you've got to ask permission first, this index cannot be built.

It's clearly important to protect property rights, but if we give authors or publishers perfect control over how all these rights get used, the new innovators like Google will not invent the next great way to access these technologies. Think about every key innovation in the history of the Internet. From Vint Cerf and Bob Kahn inventing the protocols originally (Vint Cerf was basically a kid at the time), to the Worldwide Web invented in Switzerland by a researcher, to ICQ, the first peer-to-peer chat client invented by an Israeli kid who sold it to Microsoft for $400 million, to Hotmail invented by an Indian immigrant, to Napster invented by a couple of kids in a BU University dorm room. Every single major innovation here is by either kids or non-Americans. The Internet invited innovators to figure out the next great innovation. That's the genius of its design — not that it takes away people's right to make money off their innovation — of course they should. But by restricting perfect control, you invite a wide range of innovation that otherwise wouldn't happen — you invite something like Google Print. And if we forget the value of limiting that control, then we will stifle innovation by turning it over to the industries from the last century — industries that have a narrow vision of what the future could be.

About Larry Lessig

Lawrence Lessig is a professor of Law at Stanford Law School and founder of the school's Center for Internet and Society. He has won numerous awards, including the "Free Software Foundation's Freedom Award," and was named one of Scientific American's Top 50 Visionaries, for arguing "against interpretations of copyright that could stifle innovation and discourse online."

Professor Lessig is the author of Free Culture (2004), The Future of Ideas (2001) and Code and Other Laws of Cyberspace (1999). He chairs the Creative Commons project, and serves on the board of the Free Software Foundation, the Electronic Frontier Foundation, the Public Library of Science, and Public Knowledge. He earned a BA in economics and a BS in management from the University of Pennsylvania, an MA in philosophy from Cambridge, and a JD from Yale.

About Greg Papadopoulos

As executive vice president and chief technology officer at Sun, Greg Papadopoulos guides the company's roughly $2 billion annual research and development portfolio with an eye toward simplification and innovation. With more than 20 years experience in the technology industry, Papadopoulos is responsible for managing Sun's technology direction, architecture, and standards.