Lessig's lonely crusade against corporate copyright hoarders

There's a thespianish side to Prof Lawrence Lessig, the tall, slender and bespectacled Stanford academic who is probably the best-known technology lawyer in the world.

Of course, all lawyers who go before the courts need some understanding of the nuances of dramatic presentation - how else to convince a wavering jury or hostile judge of the merits of one's client? But Prof Lessig delivered a talk at the recent Darklight Digital Film Festival in Dublin not so much as a lecture on the distribution and control of online content, but with the mannerisms of a dramatic monologue.

In the Irish Film Centre, Prof Lessig launched into a mesmeric, calmly angry tirade against what he sees as the tyranny of the US copyright system.

Later, in an interview, he was polite but quietly furious. The prime hoarders/holders of copyright are big corporations and he firmly believed US copyright laws had got so out of hand that they were causing the death of culture and the loss of intellectual history.

Prof Lessig's alleged animosity towards certain big corporations was a highlight of a series of high-profile court debates a few years ago, after Judge Thomas Penfield Jackson, in the major antitrust trial between the US Department of Justice and Microsoft, appointed him "special master" in the trial.

Microsoft appealed the decision three times, complaining that Prof Lessig was profoundly anti-Microsoft. Eventually, a higher court agreed and removed him from the case. But the tussle placed the then Harvard professor in the public eye just as technology, as a news topic, was beginning to interest more than just industry geeks.

Two books and many public appearances on the tech lecture circuit later, Prof Lessig has remained a prominent industry figure.

Copyright has concerned him for some time, he said, and what he sees as its digital world abuses were first documented in his 1999 book Code and Other Laws of Cyberspace.

Copyright has bloated from providing 14 years of protection a century ago, to 70 years beyond the creator's death now, he said, and has become a tool of large corporations eager to indefinitely prolong their control of a market. For example, composer Irving Berlin's songs will not go off copyright for 140 years, he said.

But a war is being waged against copyright "hoarders" in the corporate world by new technologies, such as peer-to-peer communication programs, that allow copyright to be circumvented, he said.

The idea that copyright exists for the benefit of artists, musicians, writers or programmers, he argued, is now laughable. New laws such as the 1998 Digital Millennium Copyright Act are "not speaking for those who create but those who hold massive amounts of copyright".

Copyright laws in the US are placing the control of material into an increasingly "fixed and concentrated" group of corporate hands, he said - only five record companies now control 85 per cent of music distribution, for example.

Because copyright law now also precludes "derivative use" of copyright material, people cannot develop new material based on copyrighted work without permission.

According to Prof Lessig, this radically changes how human culture will evolve, since "the property owner has control over how that subsequent culture is built".

He argued this restriction also stymies technological innovation, as developers cannot follow the long-established practice of taking existing code and enhancing it to produce something new.

A major problem is the fact that works by artists simply vanish off the cultural historical record, because corporations aren't interested in keeping all their copyright material commercially available. Such material "falls into a black hole where no one will have access to it", he added.

Another threat to the availability of cultural material such as older films, books and music is that it can be difficult to establish who owns the rights to a work if the company that once owned it goes out of business.

"If a corporation goes bankrupt, we're going to lose access to our culture," Lessig said.

But digital and internet technologies have the potential to create a more diverse and open culture, he said.

"Digital production and the internet could change all this, so that creative action and the distribution of these arts could be achieved in a much more diversified way than before."

This would allow for a "production of culture that doesn't depend on a narrow set of images of what culture should be".

A more open business model in which artists have greater control over their productions would create "diverse, competitive industries" rather than centralised, monopolistic companies.

New technologies such as peer-to-peer-based communication and file exchange programs could force a new look at copyright laws and profoundly change the methods of distribution, he added.

But Prof Lessig said using programs such as Napster, Gnutella, FastTrack or Freenet only to get around existing copyright law did not offer any true freedom for artists.

"Freedom is only real when it's a real alternative", not a subversive tactic facing "the perpetual terrorism of lawsuits". But freedom will remain elusive.

On the one hand, he said that corporations hold enormous power and will pull out the stops to protect "the survival of the dinosaurs over the coming of the mammals". But he also despaired that the younger generation that best understands and uses digital technology is apolitical and indifferent. Libertarian "netizens" are also often "politically pathetic", he said.

"They don't believe they should waste their time, so they don't get involved." Europe has also been "passive", allowing the US to set the agenda on global copyright law, he warned.

He said his first book, Code, was written to try to convince net users that "you've got to get enraged or it will be gone from under you".

He said he didn't think anyone would get enraged enough. "I'm extremely pessimistic. I don't think anything will change."

But he still seemed willing to be the lonely knight trying to lead the charge.