October 12, 2011  ·  Lessig

Like a fever, revolutions come in waves. And if this is a revolution, then it broke first on November 4, 2008, with the election of Barack Obama, second, on February 19, 2009, with the explosion of anger by Rick Santelli, giving birth to the Tea Party, and third, on September 10, 2011 with the #Occupy movements that are now spreading across the United States.

The souls in these movements must now decide whether this third peak will have any meaningful effect — whether it will unite a radically divided America, and bring about real change, or whether it will be boxed up by a polarized media, labeled in predictable ways, and sent off to the dust bins of cultural history.

In the Civil Rights Movement, Dr. Martin Luther King, Jr., championed a strategy of non-violence: that in the face of state sponsored and tolerated aggression, the strongest response was a promise not to respond in kind.

In this movement, we need a similar strategy. Of course a commitment to non-violence. But also a commitment to non-contradiction: We need to build and define this movement not by contradicting the loudest and clearest anger on the Right, but instead, by finding the common ground in our demands for reform.

So when Ron Paul criticizes the “Wall Street bailouts,” and attacks government support for “special businesses” with special access, we should say, “that’s right, Congressman Paul.” Bailouts for the rich is not the American way.

And when Rick Santelli launches a Tea Party movement, by attacking the government’s subsidies “to the losers,” we should ask in reply, what about the subsidies “to the winners” — to the banks who engineered the dumbest form of socialism ever invented by man: socialized risk with privatized benefits. What, we should ask Mr. Santelli, about that subsidy?

Or when Republican Senator Richard Shelby tells NBC’s Meet the Press that the message in bank reform “should be, unambiguously, that nothing’s too big to fail,” we should say that’s right, Senator, and it’s about time our Congress recognized it.

Or when Sarah Palin calls GE the “poster child of crony capitalism,” we should say “Amen, Mamma Grisly”: For whether or not we are all believers in “capitalism,” we should all be opponents of “crony capitalism,” the form of capitalism that is increasingly dominating Washington, and that was partly responsible for the catastrophe on Wall Street in 2008, and hence the catastrophes throughout America since.

We should practice “non-contradiction,” not because we have no differences with the Right. We do. We on the Left, we Liberals, or as some prefer, we Progressives, have fundamental differences with people on the Right. Our vision of that “shining city on the hill” is different from theirs. Our hopes for “We, the People,” are more aspirational. More egalitarian. More ideal.

But even though our substantive views are different, we should recognize that we have not yet convinced a majority of America of at least some of our fundamental views. And that in a democracy, no faction has the right to hold a nation hostage to its extreme views, whether right or not. We should fight in the political system to win support for our Liberal views. But we should reject the idea that protest, or violence, or blackmail are legitimate political techniques for advancing views that have not yet prevailed in a democratic system.

Instead, we should use the energy and anger of this extraordinary movement to find the common ground that would justify this revolution for all Americans, and not just us. And when we find that common ground, we should scream it, and yell it, and chant it, again, and again, and again.

For there is a common ground between the anger of the Left and the anger of the Right: That common ground is a political system that does not work. A government that is not responsive, or — in the words of the Framers, the favorite source of insight for our brothers on the Right — a government that is not, as Federalist 52 puts it, “dependent upon the People alone.”

Because this government is not dependent upon “the People alone.” This government is dependent upon the Funders of campaigns. 1% of America funds almost 99% of the cost of political campaigns in America. Is it therefore any surprise that the government is responsive first to the needs of that 1%, and not to the 99%?

This government, we must chant, is corrupt. We can say that clearly and loudly from the Left. They can say that clearly and loudly from the Right. And we then must teach America that this corruption is the core problem — it is the root problem — that we as Americans must be fighting.

There could be no better place to name that root than on Wall Street, New York. For no place in America better symbolizes the sickness that is our government than Wall Street, New York. For it is there that the largest amount of campaign cash of any industry in America was collected; and it was there that that campaign cash was used to buy the policies that created “too big to fail”; and it was there that that campaign cash was used to buy the get-out-of-jail free card, which Obama and the Congress have now given to Wall Street in the form of a promise of no real regulatory change, and an assurance of “forgiveness.”

“Forgiveness” — not of the mortgages that are now underwater. The foreclosures against them continue. “Forgiveness” — not even of the sins now confessed by Wall Street bankers, for our President has instructed us, no crimes were committed. “Forgiveness” — just enough to allow candidates once again to race to Wall Street to beg for the funds they need to finance their campaigns. The dinner parties continue. The afternoons at the golf course are the same. It’s not personal. It’s just business. It is the business of government corrupted.

There is no liberal, or libertarian, or conservative who should defend these policies. There is no liberal, or libertarian, or conservative who should defend this corruption. The single problem we all should be able to agree about is a political system that has lost is moral foundation: For no American went to war to defend a democracy “dependent upon the Funders alone.” No mother sacrificed her son or daughter to the cause of a system that effectively allows the law to be sold to the highest bidder.

We are Americans, all of us, whether citizens or not. We are Americans, all of us, because we all believe in the ideal of a government responsive to “the People alone.” And we all, as Americans, regardless of the diversity of our views, need to stand on this common ground and shout as loudly as we can: End this corruption now. Get the money out of government. Or at least get the special interest money out of government. And put back in its place a government dependent upon, and responsive too, the people. Alone.

“There are a thousand hacking at the branches of evil” — Thoreau, 1846, On Walden — “There are a thousand hacking at the branches of evil to one striking at the root.”

If this fever is to have its effect, if this revolution is to have any meaning, if this struggle — and the carnival notwithstanding, it is an obvious struggle to sleep on the streets — is to have real consequence, then we all, Left and Right, must strike first at that root.

“It is the duty of youth,” they say Kurt Cobain said, “to challenge corruption.” He may have meant a different corruption, if indeed he uttered this poetry too. But whatever he meant, embrace his words. It is your duty to challenge this corruption. And once you have ended it — once we have restored a government that cares about what its people care about first, and not just its funders — then let us get back to the hard and important work of convincing our fellow citizens of the right in everything that is left.

  • Karl

    Professor,
    More and more I think it boils down to yet another who can’t see the line between anarchy and freedom. As a result, we’re all ‘Hippies’ or ‘Commies’ or ‘Anti-capitalist’..

    I can’t conceive how any man can argue with the Amicus brief by the economists in Eldred. But, let Mr. Manes have his rant. All publicity is good, and if his screed causes one more person to read your text, that’s one more who may experience the awakening to our fundamental principles being hijacked.

    -kd

  • Charodon

    “infringe legally” — that would be an interesting trick.

    Not really. In order for a court to even get to a fair use analysis, it has to find that the use was infringing a right of the copyright owner. Fair use thus allows you to infringe legally. Fair use is not an exception to the six rights of a copyright owner, it’s a defense to an infringement action; just like the doctrine of impossibility doesn’t mean you didn’t breach the contract.

  • Anonymous

    So are you going to continue to use the Steamboat Willie example, and claim that it was a parody, a take-off, a knock-off, of Buster Keaton? It looked to me like he took the wind out of your sails pretty effectively on that one. You’ll have to find a new laugh line, Professor.

  • sean broderick

    You should consider carefully Manes’ nitpicking, as one poster has commented, because if your examples fall down on analysis, it allows detractors to distract readers from your *ideas*.

    The primary problem with this exchange is exactly that, your central argument is lost in the confetti of facts, sleight-of-hand and slurs.

    In your description of Free Culture, or as preface to these exchanges, you should briefly state the proposal at issue. Manes is actually effective in obscuring what I believe are sensible adjustments to copyright enforcement.

    I thought your proposal is to accept copyright upon creation (which seems fair and consistent with international law), but to require registration of copyright for *extension*. Such a compromise allows for the near perpetual corporate exploitation (sans negative connotation) we see today, as well as easing the way for creative works to enter the public domain.

    The current system assumes every author’s ambition is to bequeath an “Estate” to extract every last dime from their efforts, it makes bequeathing the public good a chore. Requiring registration for renewal simply reverses that equation, emphasizing the public good, while still permitting one with ambition or need to establish an estate.

    Have I missed the point? This will become contentious and political as corporate interests and their allies seek to attack and obscure this issue, which is why your basic proposal needs to stated simply and repeatedly lest it be distorted.

    P.S. Do not lower yourself, please. Was it necessary to describe Manes as “the master”?

  • Anonymous

    Don’t forget The Lion King in the Disney film list, since it’s a blatant rip-off of a Japanese TV series that was even shown here:

    http://www.kimbawlion.com/rant2.htm (clickable link)

  • Anonymous

    Oops, sorry about Kimba link which was already mentioned in the article.

    Meanwhile, Kipling’s The Jungle Book was written in 1894 so the copyright (if renewed) would have expired in 1950. The movie came out in 1967 so the book was public domain for more than a decade.

  • lessig

    re “the Master”: stupid, I agree. I changed it.
    re my proposal: yes, the Public Domain Enhancement Act is merely a requirement for registration after publication. It is not a registration requirement at the start. But Mr. Manes is right that I do say that I would be happy with copyright law in 1975. That would have required registration upon publication.
    re Steamboat Willie: OF COURSE I will continue to use the example — until someone shows me that one would be free to making “Finding Nemie” without permission of Disney.
    re infring legally: just the sort of comeback a stupid technical argument (mine) deserves.

  • JasonK

    Mr. Manes makes some interesting points (not many). However, it is lost in all the insults and abuse. It is clear that he has graduated from the Rush Limbaugh school of journalism. It’s too bad he can’t just make his point without all the abusive language.

  • surprised

    I’m surprised not to see anything here about this:

    CNN article

    about the FCC and appeals court ruling regarding cable access.

  • smart lawyer gal

    Very interesting exchange, isn’t it? Despite all the namecalling, it’s good to see a line-by-line refutation. I confess that in the end I think Manes made some good points, esp. re the Steamboat Bill/ Steamboat Willie issue. Prof Lessig’s defense isn’t terribly persuasive on this point.

  • lessig

    Well, if a “smart lawyer gal” can be so completely tripped by the Manes rhetoric, that does merit a further response. I’ve amended the stuff about the obviously true claim that I am many others before me have made re Steamboat Willie. There are hard and controversial questions out there, and I’m sure there are mistakes in my book. But this is not one.

  • smart lawyer gal

    Hey, cool. I think that’s helpful.

  • http://www.xanga.com/publicdomain WJM

    “infringe legally”

    At least in Canada, can’t speak for all other countries, the “fair dealing” provisions in our Copyright Act are not “defenses” to infringement: they are exemptions to it.

    An act that is fair dealing under Canadian law is described, not as “legal infringement”… it’s NOT INFRINGEMENT AT ALL.

    But commentators and journalists get it wrong here as well:

    http://www.cbc.ca/stories/2004/03/04/canada/lawscoc040304

    “This exception allows some institutions, like libraries and museums, to infringe on copyrighted material because it is being used for research and study. “

    Obviously, a blatantly wrong statement… in Canada, anyway.

  • CEP

    Personally, I am insulted by Manes’s drivel. It makes those of us who defend creators’ rights look really, really bad.

    More or Lessig

  • sean broderick

    I believe Lessig has done well here, but there seems a taste of emotion in this exchange… Frustration with Manes is understandable, but a rushed response or allowing any emotion increases the possibility of a misstatement.

    On a personal level, this might not seem important compared to the prerogative of a vigorous self-defense, but it can be costly. A pundit such as Manes seems at the end of their game, having found a safe spot from which to sling dung. A pundit might get a television gig like Novak, publish books, or whatnot, but they’re still just a pundit–one who taints adversaries as entertainment. Note how Manes outlines his accomplishments–I contend that aside from private achievements, the rest of his life will consist of more-of-the-same.

    Now if he can goad and troll someone like Lessig into playing whack-the-pundit, he gets to put a notch in his quiver. It’s like that old tale of drinking with the rich, but having to cover your tab when the bar closes. When you throw a pundits words back at them, it’s you who will be quoted out of context. The pundit doesn’t pay the tab, you do, and if your future public accomplishments are potentially *unlimited*, this can be tragic.

  • nate

    I think it should be apparent to you by now that a logical argument is not going to win Manes over to your side: the two of you disagree about too many fundementals. He, as a pundit, has decided to escalate to mockery. You, as a lawyer, should also consider escalating in your area of expertise.

    As you have described when dissecting Eldred, the problem is not the logic of the case but a matter of making the problem relevant. So sue him. Find a plausible, winnable case against Manes, and sue him for copyright infringement. Were you to win (or at least look like you might) you’d probably have a convert.

    Perhaps the quotes he’s taken from your writings are a few words to long? Fair use—see if his lawyer can prove it. Or maybe you can get Disney to do it for you, which would be a beautiful irony. Having them send him a cease-and-desist for his “Great Oz” metaphors would probably make him a champion of IP reform

    (about half seriously)

    –nate.

  • Anonymous

    > Or maybe you can get Disney to do it for you, which would be a beautiful irony.
    > Having them send him a cease-and-desist for his �Great Oz� metaphors would
    > probably make him a champion of IP reform

    Oops, I realize I was making that common assumption that Disney owns all items of popular culture. What is the current copyright of the Wizard of Oz?

    –nate

  • brian s

    larry, I think why you and Manes are seemlingly talking past each other in your interchange is because you both are referring to different things. From Manes perspective he sees what you and other “anarchists” want to do is liberate file-sharers on p2p networks from any restrictions or punishment by their infringing activities, even though you specifically refute that. He thinks when you say reforms are needed to make “fair use” more explicit in the digital age (as consumers are now also publishers), others will run with it to mean that if “fair use” enables one to share a copy of music with your friend, then it a digital network world everyone on p2p can be construded to be a “friend” and therefore destroy the economics of content creation.

  • Tyler

    Excellent response from Prof. Lessig. To those who say Manes “scored points” with his Buster Keaton examples, reread the post, as there has apparently been an update. It’s dissapointing to have to see such a reasonable scholar have to descend into the muck to slug it out with a hack who obfuscates and misrepresents at every turn. Count me in the column of a right winger free market believer who is appalled at the current state of the copyright wars.

    To characterize the free culture movement as a gang of freeloaders is ridiculous. I think part of the problem is the name itself: “free culture” denotes a culture of people who want something for free, when, as Lessig aptly explains in his writings, free culture refers to creating a culture in which creators are free to create. How’s that for a poorly worded sentence. It’s good enough though.

    I’d actually be interested in reading some criticism of Prof. Lessig’s writings, if there were such criticism that didn’t come from a RIAA press release or the ranting invective of an ignorant columnist.

  • http://www.bennett.com/blog/ Richard Bennett

    Manes points out, when you remove the style and attitude from his article, that Free Culture is poorly-researched and poorly reasoned. A careful examination of Lessig’s previous work, such as The Future of Ideas, reveals that these traits are typical of the professor’s scholarship.

    It’s unlikely that we’re going to have a reasonable debate on intellectual property when the conversation is dominated by bomb-tossers on both sides.

  • Rob

    Manes points out, when you remove the style and attitude from his article, that Free Culture is poorly-researched and poorly reasoned. A careful examination of Lessig�s previous work, such as The Future of Ideas, reveals that these traits are typical of the professor�s scholarship.

    Well, that’s great. You know, I think the Bible is poorly-researched and poorly reasoned too. Same with the platform of the Republican Party. But my mere assertion of those points which I view as literal facts doesn’t necessarily make them objectively factual, nor does it automatically negate the ideas underlying those assemblages of opinion and persuasive writing.

    The point Mr. Manic tries to make (and you seem to support, Richard) appears to rest on the postulate that since Steamboat Willie isn’t a plot-point-for-plot-point duplication of Steamboat Bill Jr. that no copyright infringement would have occurred regardless of the copyright regime in place at the time. Therefore, one has to question (and really, if you get down to it discard) every one of Prof. Lessig’s examples. One bad apple spoils the barrel, as it were.

    In my opinion, and to use another cliche’, that attitude throws the baby out with the bathwater. Manes doesn’t refute the basic assertions of Free Culture, one of which is that we as a nation are legislating a permission culture where we are legally bound to seek permission for whatever use, no matter how limited, of something created by someone else. Instead, Manes contends that it’s really OK because no one will actually *enforce* these laws:

    Given billions of copyrighted works, from Web pages to feature films, the stats show that it’s probably harder to get sued in a copyright case than to get hit by lightning.

    Well gee, I feel so much better now. Except that Big Media is holding all the thunderbolts and choosing who gets struck by them, and when they do strike, look out. You will be taken for every cent they can squeeze out of you, and your story will be used to make everyone else fear the thunderbolts being hurled at them next without regard for the legitimacy of their targeting.

    I’m not prepared to take the time to do a full scholarly researching of all the examples used in Free Culture. I get its points, I agree with them, and that’s enough to persuade me to support Prof. Lessig.

  • http://icite.net Jay Fienberg

    I found Mr Manes arguments highly insensitive (he can’t be that ignorant? he just wants to fight, right?) to the range of dynamics in why / how people use copyrights. Many “content” creators, assuming their works are in some kind of demand, have to make a range of decisions about how to license their works and how to license the works of others. “Free Culture” brings a truly important perspective to anyone who has to make these decisions–and, at least some of that perspective is what Thomas Jefferson tried to embed in U.S. copyright law itself. “Balance”.

    Manes seems to imagine some strawman copyright holder who is going to suffer terribly from the ideas in “Free Culture”, and then tries to argue his defense against each of these ideas from the book, which he wrongly interprets as attacks on that strawman.

    “Free Culture” is not an attack on copyright holders or their rights, and Manes is misrepresenting the book’s and Lessig’s ideas.

  • Michael

    I find it kind of amusing that the factual error (about Disney’s having paid for a few licenses) that Manes makes such a big deal out of might actually help the case for more limited copyrights. The longer the copyright, the higher the costs of creation, the more likely it is that only companies with as much capital as Disney will be able to afford engaging in creative acts. The facts seem to illustrate that even back then something like this may have been the case.

  • Miro

    Richard…from the looks of your “review’ of the Future of Ideas, I fail to see how you make your points on what you believe to be glaring holes with that book, and you’re now throwing up your hands at debating the ideas on Lessig’s new book ? Come on, you must be getting soft in your age.

  • http://www.bennett.com/blog/ Richard Bennett

    I have two major issues with Future of Ideas: 1) Lessig doesn’t have a serious grasp on the architecture of the Internet; and 2) Lessig makes wild claims regarding certain incidental features of the architecture (as he understands it) and the selection of the Internet as the primary packet network of the day. The book strikes me as an exercise in cargo cult thinking, and the overall alarmist tone is positively silly.

    By all the accounts I’ve read, Free Culture suffers from the same sorts of defects, although the author (, being a lawyer and therefore smarter and wiser than the average human,) is supposed to have a deep understanding of Intellectual Property law. Having followed his forays in search of the ultimate IP policy for some time now, and having appreciated the advice offered to him by the Supreme Court in the past, there is little to suggest that this book will be a rewarding read.

    I understand that the economics of publishing favor the “red-meat for the masses” approach we find in Ann Coulter, Michael Moore, and Lessig, I personally favor modesty and restraint in my authors. But that’s not to say that others won’t find an appealing message in Lessig.

  • http://www.blackmask.com David Moynihan

    [i]Given billions of copyrighted works, from Web pages to feature films, the stats show that it�s probably harder to get sued in a copyright case than to get hit by lightning.[/i]

    I’d just like to throw in that there’ve been times firms with lawyers went around intimidating websites, insisting they remove public domain works. Project Gutenberg, as scrupulous a respecter of copyright as exists on the planet, has been contacted in at least 14 separate instances.

    With one or two exceptions, everyone backs down and pulls the work when the registered letter arrives.

    An example is the book Right Ho, Jeeves, a Wodehouse book published stateside in ’34, but then not renewed. After Gutenberg added the title, a Wodehouse estate rep went around trying to get everyone to pull the file from their sites (Wodehouse is quite popular). Neither PG nor I did so, however many others did (I kind of told the rep off… and haven’t heard from them since.)

    Such cases, of course, don’t show up as suits. But the assumption of corporate ownership, even as regards OBVIOUSLY public domain works, has the general public backing down.

    So Mr. Manes’ argument that corporations are in fact my friends, when dicier issues such as fair use come into play, falls upon jaded ears.

  • Miro

    Richard, I’ve read your review of Future of Ideas, but your complaints aren’t very specific, and don’t seem to be many, with respect to the total amount of facts that Lessig has in the book.

    What I would like to see, and haven’t, is anyone refuting Lessig’s ideas in any detailed or large way. Most of the arguments people make about the ideas are at most (just like Manes’, and yours) a couple of paragraphs long, rely on mostly opinion and not fact, and contain a lot of generalizations.

    I would bet that Lessig would welcome someone to come up with a real rebuttal or argument longer than a page, and one that takes longer than coming up with insults and namecalling.

  • http://www.bennett.com/blog/ Richard Bennett

    Miro, if you think my comments on Future of Ideas rely on opinion and not fact you don’t know much about networks.

  • Tyler

    That’s hardly a compelling response. Each one of your posts reads like a preamble to some kind of intelligent post where you will make substantive points, and each time you offer none. Enough with the teasers, either stop insinuating that you have well thought out criticisms and MAKE them, or cut the act, and admit that your criticisms of these works are no better than Mane’s ranting. Your last comment in particular is quite typical of flippant comments that aren’t very useful to someone trying to make an objective observation of the debate.

    I’d understand if you don’t want to write essays in the comments section of a blog entry, but at least get substantive, and make a point beyond simply alluding to the fact that you might have one.

  • phr

    Mr Bennett, I’d appreciate it if you could point out some specific mistakes in the book. I’m a technical guy and may have easily missed some legal mistakes, but I don’t remember spotting any particularly bad technical mistakes.

  • Miro

    You’re not understanding my point. The Future of Ideas is 384 pages of material that don’t simply hinge on the points you make in your review of the book. I’m talking about your blog entry, “The Future of Mediocrity”.

    What I’m saying is that Manes doesn’t attempt to review the book, despite that it’s called a ‘review’. He is, along with a lot of immature namecalling, trying to call the whole book to be wrong by refuting a select number of points in the book, which Lessig points out here in this blog entry.

    Now I haven’t finished reading the book, so I can’t comment on all of what Manes complains about, but thus far, I see the same thing with your past review of the FOI. What is refreshing about Lessig’s writing is that he brings these issues with supporting history and facts. I felt the same way about “Information Feudalism” by Peter Drahos, which is on a related topic.

    The opinion that I’m talking about is when you say “Lessig doesn�t have a serious grasp on the architecture of the Internet” when your points supporting that claim are quite minor when compared to the views he expressed in FOI, even if every one of your points are correct. It’s just not substantial enough to make that claim. I suspect Manes is on the same track, but I’m not sure yet.

    What I also find interesting is your complaint of “bomb-tossers”, right before you imply that Lessig claims to be “smarter and wiser than the average human”, and the further implication that he is in search of an ‘ultimate IP policy’.

    If anything, I see Lessig almost have a self-effacing tone to his writing, declaring almost every point along the way that he is attempting to bring these issues to light, and not claiming to have ultimate answers. Which he has.

    My complaint, reiterated, is that I have not found anyone to actually take on these points of Lessig’s, in a way that is void of ‘bomb-tossing’/namecalling, and a way that is not just a book ‘review’. The Drahos book I mentioned above touches on a lot of the topics in Free Culture, but I wish there was a real counterpoint to FC than just bloggers and book reviewers.

  • http://drdiegosanchez10.tripod.com Anonymous

    TO: steve@cranky.com
    FROM:
    Estimado Se�or Manes

    Hay muchas personas que consideramos que el derecho de propiedad intelectual es v�lido, que debemos proteger nuestras creaciones. Sin embargo no estoy de acuerdo con el tratamiento que usted le ha dado al libro de cultura libre de se�or Lessig.

    Afortunadamente se puede decir si se solo se detenan los derechos patimoniales de las obras o creaciones, eso har� que muchas personas opten por liberar el conocimiento y que este paso nos lleve a una civilizaci�n mejor.

    Diego Sanchez
    http://drdiegosanchez10.tripod.com

  • http://www.bennett.com/blog/ Richard Bennett

    There are too many errors in FOI to detail them all here, so feel free to read my review, The Future of Mediocrity. Here’s a small excerpt:

    The only proper way to regulate the Internet is to understand its foundation principles, reify them, and allow them and them alone to guide regulatory policy. We�re to believe the Internet was fully and completely hatched once and for all in an instant in 1981, and that any attempt to modify it in the interests of larger public concerns can only do it fatal damage. The Internet is a sovereign space, like a tribal reservation, that can�t be touched by Constitutional law or by statute:

    One big theme of the book is that we need to get people to stop thinking about regulation as if it’s only something the government does. We need to start thinking about regulation in the sense that the architecture of the Internet regulates,” he says. “The Constitution has yet to catch up with this shift, to develop a way to express Constitutional values in the context of indirect regulation. Code becomes a sovereign power all its own in cyberspace. But the question is: Who authorizes this sovereignty and with what legitimacy? — Constitutionalist in Cyberspace, Penn Gazette

    Lessig claims that the Internet is a chaotic mess in which any packet is treated just like any other packet. While the architecture of TCP/IP did create an unmanaged mess, the scaled-up Internet couldn’t be managed in this way, so a great deal of network engineering since TCP’s deployment on some of the old ARPANet’s links in 1981 has focused on taming it. Strategies have been devised to flow-control TCP traffic, to drop packets in congested nodes in non-random fashion, and to superimpose Quality of Service through explicit protocols, user contracts, and bi-lateral agreements between Network Service Providers.

    Lessig sees this sort of network engineering as the violation of the Utopian network where all packets enjoy equal rights, but the reality is that it’s a necessary adjustment to the Internet’s contemporary mission, which is not the same as its mission circa 1981. Time passes and things change.

    But even if he were right about the Internet’s Original Architecture, he would still be wrong on the larger point, which is that the Architecture is so sacred that it and it alone can guide Internet regulation in the future. The Original Ford Car didn’t have hydraulic brakes or air bags, but the current one does and we’re all the better for it. Thus it is with any invention – it’s the nature of technology to improve over time, and the Internet will continue to improve, shrieking law professors notwithstanding. And it should.

    Free Culture has the same problem as FOI, according to the reviews and Lessig’s summaries. It asserts that there was a Golden Age of Copyright sometime in the past, and we’ve departed from it at great peril to the culture. Rather than being nostalgic about a past that never was, I’d rather be pragmatic and balanced about the interests of actual creators and consumers of Intellectual Property.

    I suggest the interests of file-stealers and samplers don’t rate very highly in the equation, and this is apparently my chief point of difference with Lessig. I should note that I make my living creating Intellectual Property in the network engineering space, so this issues is not simply a parlor game for me.

  • Rob

    The Original Ford Car didn�t have hydraulic brakes or air bags, but the current one does and we�re all the better for it…Rather than being nostalgic about a past that never was, I�d rather be pragmatic and balanced about the interests of actual creators and consumers of Intellectual Property.

    The Original Ford Car also didn’t have a governor that prevented you from exceeding the speed limit, or a GPS setup with a black box to record your movements, or require that you buy gas only from Standard Oil refineries because only they had a special additive that the engine had to have. Change is indeed inevitable, but not all change is objectively good or in the consumer/citizen’s best interests. Prof. Lessig is trying to illustrate the possible (indeed, likely) consequences of the policy choices our leaders are making. Those consequences are, to me, frightening.

    As far as being pragmatic and balanced, I’ll be pragmatic and balanced when the RIAA and MPAA do so. Since they have shown no such inclination, I see no reason to respond in kind. And I think you need to seriously reconsider the value of trying to be so pragmatic and balanced when such powerful interests have blatantly shown they are not interested in such lofty considerations, instead keeping their eyes and lawyers firmly fixed on the maximization of their profits. Which Prof. Lessig’s books illustrate.

    …even if he were right about the Internet�s Original Architecture, he would still be wrong on the larger point, which is that the Architecture is so sacred that it and it alone can guide Internet regulation in the future.

    I didn’t see that as his point. I saw his point as being that not only *can* that Architecture guide regulation, it *should* guide regulation; and in fact, it is expressly being *ignored* in favor of regulations that benefit monied interests without regard to the impacts of those regulations on said architecture. In fact, those regulations are being enacted *in spite* of the architecture, and the architecture will be legislatively coerced into compliance. Neither of us see that as a Good Thing. Packets are packets (mostly), today; but tomorrow, Comcast’s partners’ packets may be given higher priority while their non-partners are “accidentally” dropped or routed through Timbuktu. It’s all well and good to talk about enhancing networking through improvements in protocols and standards in a value-neutral world. But when you let corporate interests and therefore (necessarily!) corporate profit motives interfere with the development of those protocols and standards, you’ve got a recipe for disaster. At least from the perspective of someone interested in efficiency above all other concerns, or of someone interested in freedom and the rights of citizens.

    Maybe it is analogous to the fencing of the Old West and the end of the open range, and maybe it’s inevitable that freedom must be curtailed in the name of an orderly society; but what does that say about us, that we have to have these regulations in order to live with each other? And has that need been amply demonstrated in the case of the Internet, as it had with the Old West? I don’t think so.

    I think Prof. Lessig’s books are saying “hey, wake up out there! You’re missing what’s going on! The time to act is now, if you have any interest in maybe stopping these things from becoming entrenched in the law; because after that it’s going to be pretty difficult to get rid of them if you change your mind later!”

    One thing I wanted to give Manes credit for, he used “bloviate” in a sentence. That was impressive.

  • http://www.bennett.com/blog/ Richard Bennett

    I saw his point as being that not only *can* that Architecture guide regulation, it *should* guide regulation;

    We agree then on the point Lessig tried to make in FOI. You feel that it’s a valid one, and I don’t. The TCP/IP architecture was expedient to carry a certain type of traffic for a certain set of applications at one point in history, and as we move into the space of different applications and higher bandwidth, we’ll necessarily have to alter the architecture to meet these new needs.

    Once upon a time, highways were two-lane blacktops with lots of intersections; today we have multilane Interstates with controlled access. Sharing between cars and semis works better in the present system than it did in the old system, but lots of people complained about their towns being bypassed by the Interstates, the end of the railroads, etc. We made the decision to go with new highway architecture in the political process, not by consulting the hopes and dreams of the people who designed the two-lane blacktops.

    And that’s where we are today with the Internet, and yes indeedy, the profit motive and the invisible hand of the market will play a large role in shaping the networks of the future. To that I say better the market than the government, but obviously YMV.

    C’est la vie.

  • http://sethf.com/ Seth Finkelstein

    Does the DMCA or the Broadcast Flag count as “market” or “government”?

    What if large market players *want* to do what the government wants? (e.g. user identification and data mining)

    What if government *wants* to do what large market players want? (copyright)

  • http://www.bennett.com/blog/ Richard Bennett

    Changing the subject, Seth? We all know that everything big is bad, and everything small, organic, and natural is good, especially if it’s old.

    Now tell us where you stand on the question of whether Original Architecture must govern the regulation and design of the Internet of the Future.

  • Rob

    We made the decision to go with new highway architecture in the political process, not by consulting the hopes and dreams of the people who designed the two-lane blacktops….yes indeedy, the profit motive and the invisible hand of the market will play a large role in shaping the networks of the future. To that I say better the market than the government…

    I know you’re not saying that people with hopes and dreams should be excluded from the political process, right? Yet in fact that is exactly what happens when you remove regulation and “let the market decide”. In the absence of regulation, markets will enact such policies as maximize net profits; principles do not translate into economic figures and therefore are not a significant part of that calculation. It made no economic sense to run wires out into the hinterland to provide electricity and phone service to farmers; so if rural electrification programs and universal access regulations had not been put in place, even today there would be no such rural services. Witness how difficult it currently is to get broadband access rolled out nationwide, outside of the largest markets where infrastructure is already in place. South Korea is making a committment to roll out broadband access to their entire population; yet the great and powerful United States, technology leader of the world, can’t make any such committment because it’s not economically attractive.

    Our history is littered with examples of the necessity of regulation and government involvement. The Interstate Highway system was not created for its economic benefits, it was created as a means to quickly move military resources between coasts and borders in time of war. The economic implications were only a secondary consideration, and it would never have been created if we had waited for private industry to get around to it. Indeed, I believe the Interstate system could only have been built as a Federal Government-mandated program. There was no incentive for the meat-packing industry to take steps to ensure the safety of their products until government food-handling regulations were put in place (and even now they struggle against them). And so on.

    It may seem to make all the sense in the world to say that we should let those who are developing the network infrastructure have total control over how they go about their work, unfettered by government regulations; but if in so doing we turn over our national information infrastructure to the total control of companies only peripherally interested in the public good, I think we make a grave error. Those companies will make decisions and build in functionality to promote their own interests, regardless of whether or not those interests are in direct conflict with the public interest. And so the hopes and dreams of those who originally designed the network will be put aside, and we will get the Internet that the big corporations decide that they want to give us.

    Unless we get our act together and prevent it.

  • http://sethf.com/ Seth Finkelstein

    Not at all. I’m quite serious. What is “the market” vs “government”, when it comes to DMCA or Broadcast Flag or copyright terms?

    I don’t see “organic” or “natural” in that question, and “big” vs “small” only enters into it in that small market players often don’t have a great amount of power.

    I believe the open and equal access models are, *as a general principle*, the correct way to go if possible, yes. Not quite on identical grounds as the A-listers often argue, but consistent.

    I suppose the best way to express it is that I joke that the reason ISP’s and “no one owns the Internet”, are often so hard to grasp in political discourse, is that it’s actually a vigorous free market, and it’s so rare to see one that people tend not to know what one looks like :-)

  • Stephen Gilbert

    I just wanted to point out that the articles from TutorGig Encyclopedia and Encyclopedia4U are Wikipedia articles. You can see them at http://en.wikipedia.org/ without the flashing ads. ;-)

  • http://www.bennett.com/blog/ Richard Bennett

    Yes, regulation is a necessary evil lest the robber-baron corporations run roughshod over all of us little guys, I don’t contest that point. And yes, hopes and dreams are good, I never said otherwise; I questioned whether those of one small group are more important than those of the rest of us.

    The question is whether the architecture of the Internet circa 1981 (not the ARPANET architecture, and not the architecture of the 90s or that of today) is the definitive guide to all Internet regulation in the future. Lessig says that the 1981 architecture contained all the core principles of the final answer to the engineering of packet networks, and any deviation from it is not just folly but disaster and a threat to democracy. He warns that nefarious forces want to rip the Internet off its Utopian moorings and use it to force us to mindlessly support filthy commerce, blind allegiance to the evil Halliburton/Enron/Disney axis, and subjugate us to entertainment addictions to infinitely copyrighted materials that cost us our arms and legs.

    Lessig says the 1981 architecture is like the federal constitution: precious, perfect, and divinely inspired in its literal meaning. I find it odd that people who don’t have this view of the constitution are swayed by his comparison, and that those who do would find any analogy between the organization of a government and an engineering specification for a collection of packet routers.

    Even the constitution has had to be amended and re-interpreted to allow slaves to be free, women to vote, an income tax to be levied, and a social security system to be created. Is it not reasonable that an architectural guess that may have made sense in 1981 would have to be revised to accommodate a more diverse set of applications that the Framers envisioned?

    It does to me, but I’m not a lawyer, just an engineer.

  • http://sethf.com/ Seth Finkelstein

    “Yes, regulation is a necessary evil lest the robber-baron corporations run roughshod over all of us little guys, I don’t contest that point.”

    While I do believe this :-), note I’m not appealing to it at all here.

    Again, this is my point in asking “What is “the market” vs “government”, when it comes to DMCA or Broadcast Flag or copyright terms?”

    All of those are regulations *in support* of specific business models (whether one is for or against it, that’s what they are).

    It is unarguably true that certain forces got the DMCA, Broadcast Flag, and essentially perpetual copyright. That’s not arguable either.

    Anyway, I think you’re overdoing what lawyers call “originalism”. Every smart legal prof knows the originalism argument, and the answer that it’s not details, but broad principles.

    In fact, Lessig was a law clerk to one of the most rabid originalist judges, so I think it’s safe to say he’s very familiar with the argument.

  • http://www.bennett.com/blog/ Richard Bennett

    It is unarguably true that certain forces got the DMCA, Broadcast Flag, and essentially perpetual copyright.

    Just like “certain forces” got the abolition of slavery, the emancipation of women, and the Voting Rights Act. Creators of intellectual property have a right to protect their creations; even the Constitution says so. We live in an era when certain creations can be digitized, which makes them vulnerable to theft in a way that similar creations have never been before, so we’re trying out a variety of measures (such as encryption and the broadcast flag) to protect them from theft. I don’t see that there’s anything in principle wrong with this, any more than there’s anything in principle wrong with fencing the rangeland, as another reader has mentioned.

    Lessig’s argument is simply that they didn’t do these things in the Good Old Days, so we shouldn’t do them now. Sorry, but that’s way to weak to persuade me that the sky is falling.

  • http://sethf.com/ Seth Finkelstein

    “I don’t see that there’s anything in principle wrong with this, “

    Umm, weren’t we just talking about whether broad principles can be used as an argument?

    Lessig’s argument is that a certain kind of decentralized structure is the right way to do things, and it was done in the old days, and proved to be a great success, and we should continue it.

    I believe you are misreading this argument as saying it’s *because*, simply as a kind of precedent, it was done that way in the Good Old Days.

  • http://www.bennett.com/blog/ Richard Bennett

    Right, Seth; he says the Old Timey Architecture was good enough to get us to where we are, so it must be good enough to get us to where we want to go.

    The two lane blacktops were good enough to get us from the farm to the town, but they didn’t get us to the Moon, or to Mars, or to Jupiter.

    Time passes and things change, that’s the way of the world.

  • Rob

    Lessig says that the 1981 architecture contained all the core principles of the final answer to the engineering of packet networks, and any deviation from it is not just folly but disaster and a threat to democracy.

    I’ll have to go back and re-read FOI then, because I don’t remember him taking the tone that you describe. I think the core principles you refer to are principles regarding openness and freedom of access, not technical principles regarding transport or protocol designs. Unless you are contending that it is impossible to engineer a scalable network with the openness and end-to-end principles the “old architecture” required using modern techniques, in which case I have to say I hope you are mistaken. I am not a networking expert so I can’t really speak to that, but it is certainly a gloomy prospect for the future freedom of the Internet if that is the case.

    I have to say, the Internet seemed to work just fine before big corporate media started trying to corral and reshape it into just another revenue stream. I would think that it would continue to do so absent their meddling.

    The two lane blacktops were good enough to get us from the farm to the town, but they didn�t get us to the Moon, or to Mars, or to Jupiter

    So you think there will be an explosion of creativity if we just hand over our right to do whatever we want with things we have purchased? I don’t see the analogy here. All I see are corporate entities engaging in extortion and golddigging, and I’m not going to support that.

  • http://www.bennett.com/blog/ Richard Bennett

    Let me provide you with a concrete example of a new application that’s forced a re-engineering of the old architecture. You would agree that the old guys wanted to to treat “packets as packets”, giving each equal priority and discriminating neither for nor against any application, right?

    OK, so along comes an application that by its very nature sends or receives an order of magnitude more packets than any other application on the net. Even though the net is nicely engineered, bandwidth is still finite so a bandwidth hog forces other users and applications to wait in line, often for long periods of time, even when they haver very little data to send. So the network engineers set to work identifying this particular application and throttling it so that it doesn’t screw up everybody else’s access and delay, and now packets are not packets and they don’t all have the same right to traverse the net.

    You may think I’m talking about file-sharing, but this problem was first discovered when telnet and ftp tried to coexist back in the early, early days, and because of the necessary and reasonable compromises that were made, the TCP/IP network was no longer a place where every packet was just as privileged as any other packet.

    For those not steeped in lore, “telnet” is an application that allows a terminal-looking device to use the Internet as a virtual modem to connect to a remote host computer, and “ftp” is an old file transfer protocol.

    In the future, the Internet will be used primarily for telephony, broadcast radio and television, and classical browsing, and we’ll have to make priority adjustments and bandwidth allotments to ensure that a few people don’t hog bandwidth that should be shared with their neighbors.

    Good fences make good neighbors, and good regulations make good networks.

  • http://icite.net Jay Fienberg

    Are you saying that throttling applications that use a lot of bandwidth means that TCP packets are no longer all “equal” on the Internet? Does the throttling take place in the TCP protocol itself, or in the application protocol?

    I have understood Lessig’s argument to be more about where (in what part of the network, and at what layer) that kind-of packet discrimination occurs, rather than whether or not it could or should occur on the Internet.

    I think Lessig might agree with your “good fences make good neighbors” analogy if you mean that they are our fences. But, I don’t know if the Berlin Wall or the wall around the Warsaw ghetto could be said to be fences that made good neighbors in the sense you are suggesting. I think that is a valid type of structural difference to distinguish in how “regulation” is implemented.

    (Please excuse me if I misunderstood what you said–I am not an expert in this subject.)

  • http://www.bennett.com/blog Richard Bennett

    Lessig’s argument is that it’s wrong for network providers to place any restrictions on network users – the Internet is supposed to be a “stupid network” that treats all packets the same. So it must be up to applications to police their own behavior, and given that some applications don’t care to do that, we’ve got a problem.

    The “stupid network” model never worked, and the idea was actually abandoned soon after the TCP rollout in 1981. Lessig never got that memo, and has shown a remarkable resistance to the evidence thus far.

  • Rob

    We’ve gotten a little off the track from talking about “Free Culture”, which is OK as long as we all understand that.

    I don’t dispute that Quality of Service or bandwidth throttling might make good sense from an engineering perspective. But I think you are making the naive and invalid assumption that engineering concerns are the only factors at work in the development of the modern Internet architecture. Increasingly, decisions are being made on the basis of corporate agendas. Is there really a purely engineering-based need for a broadcast flag? In fact, is there ANY such need behind most of the changes being pressed by the content industry? I think not. To persist in believing that the network is immune to political tweaking because ultimately it is engineering concerns that will control its architecture strikes me as astoundingly short-sighted.

    Lessig�s argument is that it�s wrong for network providers to place any restrictions on network users

    …to which I would add “because network providers have shown that they cannot be trusted to have the users’ best interests at heart”. Or more charitably, because network providers are at the mercy of the content industry’s powerful Congressional lobbies and expensive lawyers, and therefore cannot be expected to be able to protect their users at the risk of their own business. The Verizon ruling was an aberration, a hopeful one but I don’t think it will stand in the long run. Ultimately providers will be compelled to identify their users, one way or another, and the providers will be forced to stand aside and allow it. Prof. Lessig has been trying to warn us of the power of the content industry and the various methods they are using to twist the legal system to suit their own purposes. He has tried to illustrate the possible impacts upon us if we allow them to proceed unhindered. In that, I think he has done us all a great service.

  • http://icite.net Jay Fienberg


    The �stupid network� model never worked, and the idea was actually abandoned soon after the TCP rollout in 1981. Lessig never got that memo, and has shown a remarkable resistance to the evidence thus far.

    I never have seen that memo, could you point me to it?

  • Miro

    Richard….as I said before, these points you bring up are certainly important, interesting, and have relevance to Lessig’s FOI, but these points are really quite minor when compared to the larger issues of the book.

    While network neutrality is a point that Lessig wants to make, even if he’s wrong about his history, the idea is still the same. It sounds like you might be too busy being upset that someone other than an engineer has something to say about the internet, and are hung up on that. The highway/road analogies that you’re trying to make are only hitting some of the points, and are flawed. The world does not run on 100% toll roads.

    Nowhere do I see Lessig arguing that the Internet and its protocols need to be frozen in 1981, nor is he arguing that TCP/IP is the only way to go, nor is he proposing an implementation of how to make the end to end design work in the future. All of that is orthogonal to his point, and I’m surprised you weren’t able to understand that.

  • lessig

    There are few things in my life more depressing that finding this kind of argument in this space. Indeed, I find myself unable to come back to my own blog when I know this Bennett stuff rages. I love argument, and honest disagreement. I loved reading “three blind mice.” But Mr. Bennett’s bullshit is too much for me.

    When Bennett first posted his wonderfully titled, “The Future of Mediocrity,” I had an email exchange with him. I told him that the “review” was filled with simple mistakes, and that however interesting it might be to argue about points fundamental, it was a waste of time if he was going to be so sloppy about basic points.

    For example, Bennett wrote

    We have to ask whether Lessig understands the Internet as a prelude to examining whether his argument for unique sovereignty makes any sense. The following claims from Future show that he doesn’t. �The World Wide Web was the fantasy of a few MIT computer scientists� � p. 7 Most people recognize Tim Berners-Lee as the inventor of the Web, building on previous work on hyperlinked text by Ted Nelson and others going back to Vannevar Bush. Berners Lee’s web site says:With a background of system design in real-time communications and text processing software development, in 1989 [Tim Berners-Lee] invented the World Wide Web, an internet-based hypermedia initiative for global information sharing. while working at CERN, the European Particle Physics Laboratory. This is not obscure information.

    .

    Bennett offers this to suggest that I didn’t know that Tim Berners-Lee invented the Web. Well, that would be amazing — a guy writing a book about the internet who didn’t know that Tim Berners-Lee invented the Web. But of course, as I pointed out to Bennett months ago, obviously, I was not saying that, for as I say at page 37 of the book, “As the inventor of the World Wide Web, Tim Berners-Lee, describes it…” Obviously, what I was saying in the quote above was that the idea of a web was dreamed of most famously by MIT researchers — Bush, et al.

    Bennett replied to me “I’ll check your book and see if I got this wrong,” but he hasn’t bothered to correct his multiply flawed review yet. When I first commented upon this, I said there was a “Rosanne Rosanna-Dana character” to the review — obvious facts make much of the criticism disappear — but tht was unfair to Rosanne. At least she had the decency to say, “nevermind.”

    The real, substantive argument that Bennett and I had, and I guess continue to have, is whether the defining architectural feature of the internet was “end-to-end.” In this email exchange, he told me I was “seriously wrong” and must have been “mislead by the “experts” you consulted.” He backed this claim up by pointing to protocols in the TCP/IP suite that don’t seem to comply with the end-to-end ideas. When I pointed out that the protocol he pointed to was an essentially unutilized spec which didn’t undermine the fundamental point of Saltzer, Clark and Reed, he responded with a typically abusive email that said that proved nothing.

    I am of course not a technologist. And of course, the only way I can understand this stuff is to read lots, and ask a lot of stupid questions of friends who are kind enough to waste their time with me. I’m grateful to many who have spent their time trying to explain these ideas to me. And I was extremely eager to understand whether or how I was mistaken about my reporting on the fundamental end-to-end architecture of the internet.

    But I’ve tired of this game. Suffice it that there are at least two views out there: one (shared by Saltzer, Clark, Reed, and Cerf among many others) that a fundamental aspect of the internet’s design was end-to-end; the other, espoused by Richard Bennett, that it was not. In light of that split, I’m satisfied with the account I offered in The Future of Ideas.

    I’ve had a bunch of emails from people asking me why I just don’t ban Bennett — making him not only the first person ejected from The Well, but the only person asked to leave the Lessig Blog. (Talk about a career of declining significance …) I won’t do that. I certainly won’t physically (ie, through the code) ban him, or anyone (save the evil spammers).

    But I do want to ban the bad manners that darken these passages. Bennett has gotten better at this, but the point is a general one. Disagree with me, please. Disagree strongly and colorfully (as the mice did so well). But behave in the way you would want your 10 year old daughter or son to see you behave. Because when Google has its way, they will.

  • Jason

    Well, there’s another voice of reason to add to the many others that have objectively (and notably avoided ad-hominem snipes) provided a bulwark to Prof. Lessig’s arguments. I only wish the poster had claimed the fame that is due them for such an amazing post.

    I do not envy the mental task at hand for Mr. Bennett and Mr. Manes; to them, it must feel like the rug is being pulled out from beneath them and I do hope that they land on their feet when all is said and done. But the fact remains that their position is untenable. To the best of my knowledge, whenever law has collided with sociological norms, sociological norms have prevailed….especially when harm cannot be proven by established industries.

    Before we focus on figuring out a way to compensate content creators, shouldn’t we figure out whether they’re being negatively affected? I am reminded of Mr. Valenti’s statement that the VCR would be Boston Strangler to his industry…every time I drive by a BlockBuster store.

    Interesting side-note: this seems to be becoming more politicized. Conservatives want to constrict the internet while liberals seek to keep it unconstrained. The freedom of the internet probably won’t make it into this year’s election campaigns, but look for it to be huge in four years.

  • LuYu

    I think I have finally figured out what the problem is with Mr. Bennett’s arguments. It appears that he honestly believes that the Internet cannot advance or progress wihtout DRM. If that is so, he has bought the White Paper of the Lehman Working Group hook, line, and sinker. That paper is the place that intoduced all the ideas like “without content, no one will use the Internet.” Well, that is a according to Jessica Litman, anyway. But if what she says is true, we are once again all victims of this political assault.

    DRM is not necessary for the future progress of the Internet. If Mr. Bennett honestly believes so, he needs to take long vacation somewhere where it is too hot to wear a tie.

    PS: I wrote that other “cross post” post. I tried to write my name in the name box, but it got deleted for some reason. Maybe if I click the “Remember Me” box, it will work. I will try that this time.

    Just in case, I am LuYu.

  • http://www.bennett.com/blog Richard Bennett

    I wasn’t really sure that I was winning the argument here until I read Lessig’s latest comment, the one which consists almost solely of ad hominem attacks, weird claims about the nature of my review of Future of Ideas, defammatory charges that I was the first person kicked off the WELL (I wasn’t, of course), the appeal to pity (“There are few things in my life more depressing that finding this kind of argument in this space”), and the obfuscatory talk about good manners, etc. Lessig wouldn’t have to resort to these rhetorical hi-jinks if he were on solid ground intellectually, and I think most of us know that, which is why the comments have pretty well dried up now.

    So in the interest of putting the discussion back on track, I’d like to clarify two things: first, my main objection to the “Future of Ideas” is the argument for originalism as the regulatory framework, not the role of the end-to-end TCP protocol in the overall Internet Protocol suite. Lessig asserts that the “Original Architecture” of the Internet, which in his mind is the TCP protocol, must guide all future regulations in much the same way that the Constitution of the United States guides all of the activities of the three branches of government, etc. I reject this opinion, and say in its stead that the Internet should be regulated by the governments of the United States in accordance with the desires of the people as expressed in their legislative bodies, constrained by the real Constitution. The author of the TCP protocol specification did not understand the protocol to be anything but a means for a particular set of applications to deliver data between systems with one or more networks in between, and the specification certainly wasn’t vetted and approved by any body with the authority to legislate. Lessig’s argument here is apparently a too-clever-by-half attempt to appeal to the originalists on the court, who see right through it.

    Secondly, on the role of end-to-end in the Internet, Lessig claims to agree with MIT luminaries Reed, Clark, and Saltzer, the authors of “End-to-End Arguments in System Design,” and to disagree with me. I don’t disagree with the paper, but I do understand it differently than Lessig, and don’t take it to be an excuse for designing bad networks. In fact, the paper’s primary focus isn’t network design – check the title – it’s system design. The main point that the authors make is actually a very small one, to the effect that programmers need to check transferred data at its final destination before committing it to storage; it mainly revolves around an incident in which some source code was corrupted because programmers assumed that the network was error-free when, because of a bad memory board on a router, it wasn’t.

    You can’t madly generalize from the experience of one programmer with one memory board on one router twenty-five years ago to a comprehensive regulatory framework for all future networks, not in this universe or in any other one, no, no, no.

    The end-to-end argument has a role in network design, certainly; we need good data, whatever that means to an application, at the end-points of the network; but that does not mean that the network must not protect itself from corruption and attack, that the network must treat spam on the same footing as legitimate correspondence, or that everyone has a divine right to steal as many songs or to download as much porn as he likes at pubic expense.

    Companies that sell communications services that connect to the Internet should be free to bundle and package and price their services as they and their regulators see fit, regardless of what RFC 793 said back in 1981 about one type of communication the Internet supported.

    (an aside to LuYu: I actually do make my living creating intellectual property; it’s primarily protected through patents, not copyrights, and I’m pretty sure about this.)

  • LuYu


    (an aside to LuYu: I actually do make my living creating intellectual property; it�s primarily protected through patents, not copyrights, and I�m pretty sure about this.)

    Then I revise my statement:

    Old Statement:

    Finally, Mr. Bennett does not �make [his] living creating Intellectual Property in the network engineering space�.

    This is the same misunderstanding that I pointed out in my GrepLaw post above. Mr. Bennett thinks that �intellectual property� is the information that he creates when, in fact, it is the specific rights to the information he creates (i.e. the copyrights). He does not understand the distinction between the two. The guy who invented the term �intellectual property� really did a brilliant job. That term totally destroys any meaningful communication between lawyers and non-lawyers.

    New Statement:

    Finally, Mr. Bennett does not �make [his] living creating Intellectual Property in the network engineering space�.

    This is the same misunderstanding that I pointed out in my GrepLaw post above. Mr. Bennett thinks that �intellectual property� is the information that he creates when, in fact, it is the specific rights to the information he creates (i.e. the patents). The government creates the “intellectual property” when it issues the patents. The ideas themselves are not “intellectual property”. He does not understand the distinction between the two. The guy who invented the term �intellectual property� really did a brilliant job. That term totally destroys any meaningful communication between lawyers and non-lawyers.

  • http://www.bennett.com/blog/ Richard Bennett

    You’ve got it exactly backward, LuYu: I create the ideas, and the grants the rights to me, based on my patent applications. The government is really not a creative agent.

    Now back to Lessig, here’s a passage from the essay End-to-End Arguments in System Design that Lessig claims as the source for his originalist argument that the Internet is and must be strictly an “end-to-end” managed network:

    Using the end-to-end argument sometimes requires subtlety of analyis of application requirements. For example, consider a computer communication network that carries some packet voice connections, conversations between digital telephone instruments. For those connections that carry voice packets, an unusually strong version of the end-to-end argument applies: if low levels of the communication system try to accomplish bit-perfect communication, they will probably introduce uncontrolled delays in packet delivery, for example, by requesting retransmission of damaged packets and holding up delivery of later packets until earlier ones have been correctly retransmitted. Such delays are disruptive to the voice application, which needs to feed data at a constant rate to the listener. It is better to accept slightly damaged packets as they are, or even to replace them with silence, a duplicate of the previous packet, or a noise burst. The natural redundancy of voice, together with the high-level error correction procedure in which one participant says “excuse me, someone dropped a glass. Would you please say that again?” will handle such dropouts, if they are relatively infrequent.

    However, this strong version of the end-to-end argument is a property of the specific application � two people in real-time conversation � rather than a property, say, of speech in general. If one considers instead a speech message system, in which the voice packets are stored in a file for later listening by the recipient, the arguments suddenly change their nature. Short delays in delivery of packets to the storage medium are not particularly disruptive so there is no longer any objection to low-level reliability measures that might introduce delay in order to achieve reliability. More important, it is actually helpful to this application to get as much accuracy as possible in the recorded message, since the recipient, at the time of listening to the recording, is not going to be able to ask the sender to repeat a sentence. On the other hand, with a storage system acting as the receiving end of the voice communication, an end-to-end argument does apply to packet ordering and duplicate suppression. Thus the end-to-end argument is not an absolute rule, but rather a guideline that helps in application and protocol design analysis; one must use some care to identify the end points to which the argument should be applied.”

    End-to-end is a guideline for applications, not a law about the network; important distinction.

  • http://www.bennett.com/blog/ Richard Bennett

    The quoted text spans two paragraphs, but only the first was properly italicized. The last word from Saltzer, Reed, and Clark is: “Thus the end-to-end argument is not an absolute rule, but rather a guideline that helps in application and protocol design analysis; one must use some care to identify the end points to which the argument should be applied.”

    It seems to me that Lessig fails to use the the care that the authors counsel.

  • Karl

    “I create the ideas, and the grants the rights to me, based on my patent applications. The government is really not a creative agent.”

    You only have it half wrong on this account. Sure you may have the ability to create, but that alone does not automatically grant you any kind of right. The right to possess the patents, copyrights, etc. is done through social contract between you and the public.

    Or at least that is the way it used to be. The real argument here is weither or not the public are even accounted for in this social contract. And from the remarks Stephen Manes, they have no regard with how precious the social contract system works. You don’t have authority, you are granted authority. Big difference as opposed to assuming that the authority is already born innante within you.

  • Rob

    Just to clarify the record…while Roseanne Roseanna-Danna was indeed a frequent commentator on Weekend Update, the catchword “nevermind” was actually the hallmark of another commentator, Emily Litella. Emily was known for taking slight misstatements or a small misunderstanding of meaning and going off on a wild crusade against a perceived injustice. Then, when her misunderstanding was clarified, she would apologize by saying “nevermind”. Roseanne was a stereotypical New Yawk-er whose catchphrase was “it just goes to show you, it’s always something!”. Both Emily and Roseanne were characters created by Gilda Radner, whose work and wit lives on in our memories and in reruns.

    We now return you to your regularly-scheduled mudslinging.

  • http://www.bennett.com/blog/ Richard Bennett

    That should have read: ” create the ideas, and the *government* grants the rights to me…”

    It’s hard for me to use the g-word in public.

  • Karl

    Correction accepted.

  • http://z z

    The Wizard of Oz, the book, is out of copyright. The final L. Frank Baum book in the series is still in copyright, owned by some publisher or other, thanks to the copyright “extension”. :-P

  • Nathanael Nerode

    Richard Bennett wrote:
    “Creators of intellectual property have a right to protect their creations; even the Constitution says so. “

    So you’ve already been corrected about the phrase “creators of intellectual property”; I’ll politely reinterpret this as:

    “Creators of works on which the government grants intellectual property rights have a right to protect their creations; even the Constitution says so. “

    Hope that’s OK.

    Now, this sentence is *still* wrong, containing two more major errors.

    The Consistitution says that Congress has the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”.

    According to the Constitution, this “right” is entirely artificial; Congress may secure it, or it may decide not to. I hope that you already understand that. This means that creators only “have” those rights at the whim of Congress — the Constitutition does not, in any sense, say that creators “have” rights over their creations, merely that Congress may, in some specific circumstances, grant them rights, as part of promoting the “progress of science and useful arts”.

    So this is a major error. Perhaps creators “have” such rights, but the Constitution does *not* say that they do.

    The next error in Richard’s sentence is that Congress can’t (and doesn’t) grant “the right to protect their creations”. There’s nothing about “protection”. Congress can grant to authors “exclusive rights” to their writings, or it can grant to inventors “exclusive rights” to their inventions.

    “Protection” of writings or inventions is not a concept present in the Constitution. “Protection” treats works like children who might somehow get hurt. Writings and inventions, as intellectual items, can’t be hurt, and don’t need “protection”; no matter what happens to a copy, the original still exists in all its unmodified glory.

    When people talk about “protection” of works, they usually mean protection of the *copyright or patent holder’s income*, not protection of the work. And the Constitution doesn’t contemplate any such right either!

  • http://www.glome.org/ Trevor Hill

    Guys, this is a fascinating exchange for me to read. It’s like seeing two invisible people try to play catch with each other.

    Mr. Lessig — I don’t think Mr. Bennett is rude, insensitive, or incorrect for the most part. Mr. Bennett is simply taking things from a very consequentialist engineering perspective, one common to many if not most engineers, including myself. We make the network the way we want to make it, or need to make it, in order to do what we want or need to do. The architecture of the network simply depends on what we want to do with it. I think that’s all he’s really saying.

    Mr. Bennett — I think you’re ascribing a bit too much vigor to Mr. Lessig’s reliance on the original architecture as a sort of requirement that ‘cannot’ or ‘should not’ be changed. I don’t see Mr. Lessig saying that. I think he’s rather trying to say that the freedom we have had on the internet up to this point has been a good thing, and even if some forces may push us to re-engineer certain aspects of the network, we should resist that if it substantially moves away from this freer architecture we’ve had up to now.

    So Mr. Bennett is saying “we simply make the network what we want it to be.” Mr. Lessig is saying “we want it to be substantially the way it’s been, because of the freedom that initial architecture has allowed, because I like that freedom.” These, in my opinion, are qualitatively different statements.

    I think these arguments can co-exist, as long as Mr. Lessig doesn’t assert that the architecture itself is a basic organizing principle. Clearly, it’s true that the architecture flows from the applications we implement or want to implement on the network.

    The distinction here is in the characterization of the initial architecture. I don’t know what the initial architects of the network were thinking. I believe Mr. Lessig may have characterized the initial network as having been created with the goal of a freedom supporting architecture in mind. If that’s the case, it may be incorrect — my inclination would be to believe the engineer’s motives to be simplicity, efficiency, practicality, and the achievement of the objectives at the time, rather than any ‘free architecture’… I would tend to think the sense that this architecture supported freedom is a realization that came later, and probably not one that was a goal of the architects ex ante.

    Really, can’t we just agree that the network was engineered simply, for the tasks at hand, and that’s it? Just like a simple society is simple for efficiency reasons, so too the internet. And then come negative externalities, and the requirement of further regulation, be it in the form of higher-level protocols or law…

    It’s difficult to pinpoint it, but I think Mr. Lessig sort of views this architecture as a favorable history, from which we should learn and base our future decisions, from a moral perspective. Mr. Bennett simply views it as history, neither favorable or unfavorable, but performing the task for which it was created; a very neutral stance.

    Bennett is saying the architecture follows the applications. Lessig is saying freedom is the application he wants to implement.

    Oh, and my 2 cents? I think in the end we will fight out a balance, but we will have to have identification and DRM, because these enable applications that people want, and what people want, people will get. If we don’t build those features into the network, at some level, we will see ‘the tragedy of the commons’ in terms of creativity. Although recombination of existing works would be greater without DRM, original works would be fewer. We need some of both, but the higher valued of the two would be originality in my opinion, so the balance should be struck in its favor… I know this is on the less popular end of the seesaw (at least on this site), but that’s where I end up right now.

  • Anonymous

    Jesus H Christ.

    If half the effort that went into the hissy fits above had been put into doing something useful we’d have solved half the world’s problems by now.

  • robmyers

    “So are you going to continue to use the Steamboat Willie example, and claim that it was a parody, a take-off, a knock-off, of Buster Keaton? It looked to me like he took the wind out of your sails pretty effectively on that one.”

    Yes, that is how it was meant to look. But if you re-read it, he’s doing the classic bait-and-switch of arguing a completely different point (was the music licensed?) to the one he claims to refute (was it a parody?).

    Sadly, Prof. Lessig doesn’t point this out clearly either…

  • http://americandigest.org gerard van der leun

    As a brief aside on a factual question: “…I�ve had a bunch of emails from people asking me why I just don�t ban Bennett � making him not only the first person ejected from The Well, but the only person asked to leave the Lessig Blog.” — Lessig.

    This is incorrect as Mr. Bennett points out.

  • LuYu


    As a brief aside on a factual question: ��I�ve had a bunch of emails from people asking me why I just don�t ban Bennett � making him not only the first person ejected from The Well, but the only person asked to leave the Lessig Blog.� � Lessig.

    As much as I disagree with Mr. Bennett and dislike his style of arguing and his assumptions, I have a difficult time thinking his rants are bad for these discussions. He brings up points that many who are ignorant of the law and the way it works or baised about how the law should be would make. Many of his arguments are pretty good. His review of The Future of Ideas was a mess, but deep down, he seems to have some solid convictions.

    It seems to me that silencing dissent is precisely what most posters here are against. If we truly believe in free speech, should we not give Bennett the opportunity to speak his mind?

  • citizen (no rosebud)

    Mr. Manes, though he makes some decent arguments, is far, far too one sided. His hubris, emotions and monster ego, overshadow his article. Professor Lessig, though your initial response may have been more emotional than normal (note: I would have fared worse and excoriated him), you have the better and the more rational argument. Professor Lessig, let him pick at the margins, in the whole, however, your argument carries the day.

  • http://www.glome.org/ Trevor Hill

    Well, it’s understandable to me that people could get angry about Mr. Lessig’s message. It’s similar (imho) to the reaction that civil rights activists get when they demonstrate against something like racial profiling after 9/11. It’s the “wait a minute… we’re not screwing around here” effect. IP isn’t intangible when it comes to our GDP or our wallets. I myself believe that we need even stronger methods of protection, i.e. effective DRM, but need to work out the balance between the rights of creators ex post vs. ex ante through the political and judicial systems.

    Although Mr. Lessig talks a lot about balance, he’s clearly in the leftist camp, and most of the supporters who gather there seem to espouse far more radical views of IP than he or many of his detractors do.

    I love Mr. Lessig’s thought-provoking writings, but when I look at the big picture I see the U.S. at odds with the world, and the competition is going to get much much tougher. I also see the FOSS community primarily composed of academicians who have no worries, small companies struggling to make a buck, and big players like IBM just getting tons of value for free. I don’t think it will happen, but I wish the geek community would have an epiphany one of these days and just wonder for a moment whether they’re not being really naive… It’s not a bad thing to be practical…

    Again, Mr. Lessig toes an interesting line, ostensibly arguing for balance while garnering the support of many seemingly radical activists… In the end, it might do him better to create a bit of distance there, as I don’t think most people can separate the message from the movement… Or have the supporters I vaguely refer to been purposefully cultivated?

  • Anonymous

    Suggestion: rename your blog to Larryland!

    I don’t have anything substantial to add, but seriously, his Oz-land analogy was unnecessary, childish, dull-witted, and embarrasing before he got through the first paragraph.

  • Kevin

    You know… right now… I have never been more proud of being a moron!

  • somebody

    Great book. I wish that it was available in print in my country. If I have time I might try to translate sdome of its parts so long as creative commons license permits it

  • Nairb

    Mr. Manes’s “wildly” colorful speech aside, I find it amusing that he fails to address one of the primary arguments of your book: works in the public domain facilitate the creation of future works. Indeed, it might not be the best proposal that all works immediately fall into the public domain. But there is a reason that copyright expires, in name at least. (whether this is true in function or not is discussed in FOI, and probably a matter which will be debated in future courtroom discussion.)

    Not to mention that he has evidently vastly misinterpreted what Lessig has written; this line was my favorite example:
    “He seems to think that anything that seems old–never mind whether it is or not–must be in the public domain. And if it isn’t, it should be.”
    Are you kidding me? Lessig makes a strong case for the existence of public domain, and some rather liberal suggestions for how long copyrights should exist before their lapse, but never does he suggest everything be in the public domain.

    As for myself, I found FOI wonderfully informative. For instance, the bit detailing how copyright management works in the case of the film industry was very enlightening, and an excellent example of just how copyright can cripple the creative expression of future filmmakers.

    I will be reading Free Culture online soon, and depending on my enjoyment I shall also be purchasing a dead-tree format copy. But I’m a poor college student, so don’t count on my sponsorship too much ;)

  • http://ebooks.die-werbung.de robmyers

    I think these arguments can co-exist, as long as Mr. Lessig doesn�t assert that the architecture itself is a basic organizing principle. Clearly, it�s true that the architecture flows from the applications we implement or want to implement on the network.

    The distinction here is in the characterization of the initial architecture. I don�t know what the initial architects of the network were thinking. I believe Mr. Lessig may have characterized the initial network as having been created with the goal of a freedom supporting architecture in mind. If that�s the case, it may be incorrect � my inclination would be to believe the engineer�s motives to be simplicity, efficiency, practicality, and the achievement of the objectives at the time, rather than any �free architecture�� I would tend to think the sense that this architecture supported freedom is a realization that came later, and probably not one that was a goal of the architects ex ante.

  • Rob McMillin

    So here Mr. Manes is exactly right. The way the law is written today, and as applied to what people do on the net all the time, “infringement–much of it fair use[sic]–happens all the time.” And my point is a law that makes what ordinary people do “all the time” illegal ought to be thought.

    I’ll bite — ought to be thought what?

  • http://www.ai.mit.edu/people/hqm Henry Minsky

    I agree with another commenter here, this is *good* publicity for Lessig’s cause. His rebuttal here is only possible because of the original attack.

    Larry, I think this kind of forum is one of the best ways for you to present your arguments; by themselves they make for dry and abstract reasoning, but against an actual opponent, with specific examples, and against the kind of rhetoric that the Disney crowd is used to generating, your arguments come to life and are more persuasive.

  • Anonymous

    “I�ll bite � ought to be thought what?”

    Ought to be REthought. Sheesh.

  • Anthony Pascal

    Does anyone know how the copyright law relates to recordings of songs in the public domain? If the recording CAN be copyrighted, how long does the protection last?