September 17, 2002  ·  Lessig

I stupidly have fueled two extremely fruitful debates–one about software copyright, and the other about Palladium and end-to-end values–stupidly because there is a third debate I need to be focused on just now. But there is a limit to the attention “limited Times” can demand. Back soon, I promise, to debates that in their civility and seriousness show the best of what this space can be.

September 17, 2002  ·  Lessig

RMS wrote with kind words about the substance of my OSCON talk, but with fair criticism about its form. Flash!, for all its magic, is not “free” in the relevant sense. Can’t I, RMS asks, put this up in a free form? He volunteered to OGG the MP3 file. But is there someone who has played with the emerging free video tools enough to be able to convert the mix of text and images into a free form? I’d love to tinker with it, but there are mice to be freed.

September 14, 2002  ·  Lessig

Ted Shelton has a careful and fair critique of my response to his original critique of my proposal for reducing state support for oblique creativity. We are completely agreed about one important point: That the ultimate question here is which system provides the best incentives to create and spread knowledge.

As I read Ted’s response, the only dispute is about whether my condition upon getting copyright protection (that you escrow source code which, when the copyright expires, is free) would be too much of a penalty for software authors that they would instead choose private protection (secrecy) over public. That’s a fair question to explore — as an empirical question — and I can agree my proposal makes no sense if we have sufficient reason to believe it would have that effect.

The part in Ted’s response I don’t get is this:

[a]Thus the inventor of oblique IP would be compelled to divulge the “secret sauce” of his invention and would never be accorded the same choice between some value offered by the state (a “limited time” monopoly in the case of patents) vs. the ability to do business without such a monopoly (a “trade secret” with the possibility that the secret sauce would be reverse engineered). [b] Furthermore, as software is infinitely duplicable for nominal cost, the inventor would have all value in his invention stripped from him by the State at the end of the “limited time” of protection, as the State would become the distributor of his invention. The corollary with a physical product would be for the State to give everyone a free cotton gin when Eli Whitney’s patent ran out.

I don’t get [a] because, again, I think I am offering exactly the same choice. If you want the “limited time” monopoly offered by the state, then you must escrow code; if you don’t, then go wild with secrets and protecting against reverse engineering. The structure of the offer is no different; only the terms.

I don’t get [b] because from an economic perspective, for a competitor, there’s no real difference between giving the world all the information needed to build a cotton gin and giving the world all the information needed to write 123!. Whatever the cost of production (zero or lots), from a competitive perspective, everyone faces the same information cost (zero). Secrecy keeps the information costs high (only I know how to make X, you would have to pay lots to figure it out); patents (properly administered) reduces the information costs significantly, but substitutes a state backed monopoly (anyone can figure out how to make a cotton gin, but only X is allowed); after the expiration of the patent, everyone has access to the same information, and because the monopolies are removed, everyone can compete equally.

September 13, 2002  ·  Lessig

Right-to-tinker maven Ed Felton is skeptical that copyprotection would be placed in the network. “From an engineer standpoint, that assumption looks wrong to me,” he says. But what if we looked at Fritz “not an engineer” Holling’s perspective? The point of my article is that Congress is pushing copyprotection in the network, whatever engineers would argue is ideal. A differend DRM would undermine that push. (But so too would a different Congress for that matter.)

September 13, 2002  ·  Lessig

This is beautiful, Doc. And key. It’s not in my constitution to be optimistic, but if only msft would become as you hope. Talk about a legacy. Remember, it was Sony that defended the vcr, before they became a content company.

September 13, 2002  ·  Lessig

Ted Shelton has some very thoughtful and balanced criticisms of my criticisms of “opaque creativity.” He writes that I am wrong:

that IP creation in the past was always transparent and that today we have a new problem of obscuring production or presentation. Coca-cola, for example, has never disclosed their recipe for Coke — Would Lessig compel them to disclose this recipe? Is this the kind of transparency he is looking for?

It’s a great example, but I think it cuts the other way.

Coke has a trade secret protecting “Coca Cola.” Trade secrets are forever — or until someone reverse engineers them. Patents and copyrights were devised to get us something more than secrets: their purpose was to induce the inventor to put the invention into the public domain. As the Supreme Court said (unanimously) in 1989, “ultimate goal of the patent system is to bring new designs and technologies into the public domain through disclosure.”

How? By giving him a limited monopoly over the invention, afterwards the ideas become free for anyone to take.

Patent law is (or was) all about this. To get a patent, you have to describe the invention in a manner that anyone trained in the field can copy. The patent itself was a “here’s how to copy my invention” document. (Patent lawyers over the past two hundred years have nicely perverted this — it’s now practically impossible to go from the patent back to the actual invention. But that was the original purpose.) It was a device designed to eliminate “opaque creativity” by buying off the inventor with a “limited time” monopoly.

My proposal is a compromise between these two extremes. The law has got to be generous enough to get inventors to opt away from secrets if the law is to induce inventors to reveal their stuff to the public domain. But it has also got to be balanced enough to assure that the invention does actually get to the public domain. There’s no reason for the state to be handing out monopolies unless the state gets something more than what it would get if people used secrets (and “more” here means more than simply more code).

So I say: give the inventor of code a relatively “opaque” monopoly for a truly limited time — 5 or 7 year terms, renewable to 10 or 14 years if the inventor wants. But as part of that bargain, require that the inventor escrow the code, so that at the end of the monopoly, the public gets something useful contributed to the public domain.

I’ve heard useful arguments against this. Some say object code is transparent enough. I think not, or at least, not for us mortals. Some say the public gets its due with the program itself. No doubt, the public gets alot. But the whole purpose of the clause in the Constitution that says that Congress’s power is to “promote the Progress of Science” is to induce a spread of new learning. If the government is going to be handing out monopolies to authors and inventors, and expending significant state resources to enforce their monopolies, then a bit of learning, 7 or 14 years later, is not a terrible price to pay.

September 12, 2002  ·  Lessig

Ernie accuses me of optimism because of a piece in the Red Herring. In that piece, I argue that obsession about antitrust issues blinds us to other (also important) network and policy issues. And one in particular was how different DRM systems affect the network differently. Some, the argument goes, better support the end-to-end architecture that the network originally valued, and it would be easier to assure that token systems did so than copy protection systems. (Copyfight as usual puts it better than I.) Does that make me an optimist? Wouldn’t that be nice. But no: I am not arguing there’s less reason to worry about antitrust; nor arguing that DRM is a good thing; only arguing that we need constantly to think about how different technologies affect the policy of the net. Remember Mitch’s insight over a decade ago: Architecture is politics.