What About Lessig?
Doc is responding to my claims of Lessig being more like Stallman than like Dave. He says “And on what hard evidence is Larry ‘like Stallman; a collectivist opposed to individual property rights’? And how is Larry not in favor of individual liberty? Facts, please.”
I didn’t even realize that Lessig had been involved with the antitrust trial (as Doc mentions on his blog), but there have been many times that I have wanted to critique his articles on my blog. I just randomly picked from Google this one called “The Internet Under Siege” which is similar to most of his other articles.
First, the overall theme is consistent with Lessig. His articles tend to present the same set of arguments, which can be summarized “The Internet is a wonderful resource. It never would have been created if intellectual property laws had been involved. Now greedy people are trying to enforce intellectual property laws on the Internet. THE INTERNET IS IN TERRIBLE DANGER; ACT NOW AND DO WHAT I SAY!”
He is a persuasive writer, and spends quite a bit of effort in each article developing the arguments. He generally spends half the article (give or take a quarter)describing how the Internet is like a neighborhood park, and how the Internet was put together by all sorts of chummy altruistic and downright neighborly people. The other half of his argument is generally an exposition on all sorts of sinister manipulations that pinstriped men in smoke-filled rooms are using to take complete control of your life, and generally scaring the crap out of you.
This is the essence of Lessig’s advocacy, and the underpinning of every work I’ve seen from him. He admits that private property is a good thing in many situations, but he has chosen as his life’s work to advocate for collective ownership of anything related to the Internet. When he dedicates resources exclusively toadvocating collective ownership of Internet-related human creations, it hardly matters what he thinks about intellectual property in other areas. He’s not writing books or trying court cases on other topics, so it is pointless to say what he thinks about those things.
Now, Lessig is a lawyer. To a lawyer, an argument is not a matter of objective fact, but instead a tool to be used to persuade an audience. Lawyers are not expected to present purely objective and balanced facts — the adverserial nature of the courtsinsists that two sides be represented, each as fervently as possible by the advocate for that side. The facts are not a tool that the lawyer uses to determine which outcome (guilty or innocent, etc.) is correct, but rather are raw material to be used to elicit a predetermined outcome. Forlawyers, likepoliticians,facts are often secondary to the desired outcome. So perhaps it is a result of his profession thatI get two unhappy impressions from Lessig’s articles (I will elaborate on each, using the article as basis).
First, I getthe feeling that he wants (for whatever reason) collective ownership of all Internet-related human creations, and that he is willing to say, do, or argue anything to reach that goal. In other words, it feels like the facts are secondary to the political goal. This is the same impression I get from Stallman. Second, he tends to present his arguments as caricature, exalting the virtues of his position while leaving every other perspective lumped together in the outer darkness (where there is weeping and gnashing of teeth).
Let’s move straight to the first point. Lessig takes all sorts of factual liberties when trying to make the case that the Internet was created by chummy altruists. He claims that the early Internet philosophy “ranked humility above omniscience”. Obviously he never got in a flame war with Jon Postel. I understand that he is trying to relate the concept of “be strict in what you send and liberal in what you accept”, but it’s shockingly bold to be twisting it this way to foster the idea that the Internet pioneers were humble saints. What Lessig describes is a loosely-coupled architecture. No doubt loose-coupling encourages innovation, and I think Lessig is correct to campaign in favor of loosely-coupled architectures. But he tends to get confused on the points and get turned around backwards.
For example, he claims in the article that the infrastructure of the Internet was based on open code. This is flat-out wrong. I have yet to see Cisco open-source the software for their routers. And in fact, the whole point of loosely-coupled architectures is that you don’t need to have access to source code to get the network effect. Lessig talks about loosely-coupled architecture and then totally misses his own point by talking about source code. As proof in point, I once worked for a very large company that was on USENET by way of NNTP. The news server was written entirely in-house by some guy who was a Mumpsguru, so naturally it was written in Mumps. It worked fine, because the protocols were open. If source code had been the interop layer, I doubt we would have used NNTP. By the same token, Netscape and Microsoft both wrote their web servers from scratch, and these two web servers helped drive significant growth on the Internet during the early days of the web. Granted Apache (which is evolved from the orignal NCSA or CERN httpd source code) has a large market share now. But most companies were not willing to trust this code (and with good cause, since it sucked) during the early years. Netscape deserves at least as much credit as Apache for driving the innovative years of the web; especially considering that NCSA stalled at CGI while Netscape and Microsoft continued on with a number of features that Apache has only recently been able to clone. The open protocols deserve credit for the innovation on the web, and perhaps you can say that Rob McCool’s original source code provided the very first traction that web servers needed to begin moving toward ubiquity. But to say that source code other than McCool’s was instrumental in driving web innovation would be a lie.
And, like most rabidly partisan advocates, he totally fails to recognize the commons that was more responsible than any other for the growth of the Internet: the Microsoft Windows franchise. The Internet would still be a plaything of researchers if Windows had not offered a ubiquitous platform for browser vendors to target. And Windows would have been just another fragment of the Unix polyglot if intellectual property laws had not been their to protect Microsoft’s creation.
This is something Doc Searls gets right — commercial companies do have an importantrole in the ecosystem. Lessig in this sense typifies the myopic view of many on Stallman’s side of the debate. He sees that something originated in academia, and rightly gives credit to the academics for innovating. But he extrapolates that to argue that academic notions of “intellectual commons” are sufficient for innovation. But I can point to at least twenty different researchers’ work that has implemented proof-of-concept for the “semantic web”. And we still don’t have a “semantic web”. When the semantic web happens, there will be plenty of researchers we can give credit to. But if we leave it up to the researchers alone, it’ll never happen. And by the way, when it happens, Stallman will try to say it was because of the source code, but he’ll be wrong — they are still busy trying to write a clone of .NET or ship a kernel.
Lessig continues to miss the point by holding up Hotmail and ICQ as paragons of Internet-enabled innovation. Before Hotmail, we had POP and IMAP. These open protocols allowed competition between client vendors and service providers. Hotmail and Yahoo mail are the antithesis of everything Lessig is fighting for. With the web-based mail, you have to pay extra money to use the client of your choice (if they support POP at all). Your access to e-mail is skinned through a web browser, making it far more difficult for you to customize, download, or otherwise deal with your messages as anything other than HTML slop. And they are controlled by centralized companies who essentially have their users locked in a “walled garden” where they can control the users’ experience. ICQ is another bad example — we used to have IRC, and multiple competing IRC networks which could all be used from multiple competing clients. There was no way that any company could “buy” IRC, since IRC is just a protocol that can be implemented by any client or server. But AOL was able to buy ICQ. And in any case, Lessig doesn’t have source code for Hotmail or Yahoo mail, does he? How about source code for Google?
He claims that Amazon.com used capabilitiesunique to the Internetin conjunction withUSENET-mining software from MIT to “revolutionize” retailing. But data mining in retail was and is going strong independent of the Internet, and to say that the data-mining Amazon does has some sort of magic Internet-enabled, MIT-powered mojo is pure storytelling.
Besides the factual inaccuracies, there are some arguments that are highly debatable, although Lessig presents them as matter-of-fact. For example, he claims that the telecom regulations requiring open access were a key factor in success of the Internet. I think he is talking about TA96. I know about TA96 because I wrote software for some large telcosto ensure conformance to TA96. I also tend to follow developments in telecom regulation, and I am surprised to hear that any of the promised “open access” ever happened without me noticing. I recall AT&T rolling out massive new fiber optics in some areasto offer local phone service, and renting local access from RBOCs in other areas to offer local phone service. I also remember them giving up after billions of dollars spent. I remember many RBOCs trying to break into long-distance as well, and I don’t recall that working out. Maybe Lessig is talking about the fact that a number of long-distance carriers cropped up for use to choose from — carriers like Qwest and Worldcom. And what that has to do with the Internet is beyond me. NTT is the largest telco monopoly in the world, and happens to own the largest chunk of American web hosting capacity. Most of the traffic over the middle of the Internet is still controlled by two or three companies. Most of the point-of-presence connection to the Internet is controlled by two or three companies as well. What law (TA96??) lets me buy a chunk of the Internet backbone? How does the law help me compete with AOL and Earthlink for last-mile access?
In any case, it isn’t the factual inaccuracies that bother me so much as the feeling that Lessig doesn’t care about the facts, beyondthat they can be presented in a way that bolsters his argument. He seems very intelligent in the same way that Noam Chomsky is intelligent, so I do not think he is convinced by his own arguments. They contain too many questionable and incorrect assertions that he must know thathis factsarevulnerable tochallenge. One assumesthat he would rather not explore those weaknesses, because he would have to come up with better arguments (he sure doesn’t seem about to change his position). If the jury is buying the argument, there is no need to produce more material. He seems to believe in the cause, but the arguments are there so that you will believe in the cause. And I will remind you that his “cause” is for Internet-related property to be collectively owned (including source code).
Which gets to my second complaint. Intellectual property issues are not black-and-white. The best example I can think of to illustrate this point is that of pharmaceuticals. I doubt that Lessig or Stallman would argue against social policy that allows drug companies to procure patents. Eliminating drug patents would kill people. At the same time, even most libertarians would agree that it is a bad idea to allow drug companies to have a patent that lasts forever. There is no clear-cut “obvious” answer as to how long a drug patent should apply. This is an example of a case where society says “we may never agree on exactly how grey it is; but at least we agree that it’s neither black nor white”.
Now, take Lessig’s closing paragraph and substitute Internet with Pharmaceuticals: “Policymakers around the world must recognize that the interests most strongly protected by the pharmaceutical company counterrevolution are not their own. They should be skeptical of legal mechanisms that enable those most threatened by the generic drugs commons to resist it.New drug formulas promised the world¡Xparticularly the weakest in the world¡Xthe fastest and most dramatic change to existing health problems. That promise depends on thedrug formulasremaining open to innovation.”
Lessig leaves no room in his closing argument for the possibility of compromise. He does not even acknowledge that the producers of the intellectual property might have the right to have some say in how their creations are distributed. He is saying flat out — anyone who wants IP on the Internet is anti-government and should be opposed, and righteously so because the rich pigs want to deny the Internet to poor people who need it most. In fact, his closing paragraph might be halfway credible if he were talking about pharmaceuticals, but he’s not. But even if he were, Malaria, Measles, and Polio kill millions of children each year, and millions of deaths could be prevented each year by simply making available medical treatments which are already unencumbered by patents. First, Lessig doesn’t make a good case that patents are the thing preventing poor nations from getting access to the Internet (and from the mass viral spread of Internet access through the smallest villages in India over the past 5 years, nothing is stopping the spread). But even if he did, he still doesn’t make a good case that access to the Internet (royalty-free or not) is such a fantastic boon to people who are dying of easily-preventable diseases. And GPL source code doesn’t do anything for the poor countries either. When kids are dying of easily-preventable diseases, shouting out “Open the Source Code and all will be better!” is the height of crass cynicism (and assumes the world leaders have their priorities as screwed up as you do).
Regardless, I think his closing paragraph demonstrates that Lessig paints things too monochrome. In that sense, Doc and Dave and I are in agreement. The Internet hasboth common areasand fenced-in estates. Doc tends (in my opinion) to overestimate how much of the Internet is needs to be collectively owned, but at least we can argue about that from a shared frame of reference.
Lessig, on the other hand, asserts that the Internet was a collective, is a collective, and that government policy should be driven based on a collective notion of Internet control.