Faculty Bibliography
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For more than a decade, we’ve been waging a war on our kids in the name of the 20th Century’s model of “copyright law.” In this, the last of his books about copyright, Lawrence Lessig maps both a way back to the 19th century, and to the promise of the 21st. Our past teaches us about the value in “remix.” We need to relearn the lesson. The present teaches us about the potential in a new “hybrid economy” — one where commercial entities leverage value from sharing economies. That future will benefit both commerce and community. If the lawyers could get out of the way, it could be a future we could celebrate.
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Lawrence Lessig, Cyberspace and Freedom of Expression: What Things Regulate Speech: CDA2.0 vs. Filtering, in Law and Society Approaches to Cyberspace 283 (Paul Schiff Berman ed., Ashgate Pub. 2007).
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This collection offers an invaluable introduction to cutting-edge ideas about law and society in an online era.
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Lawrence Lessig, Does Copyright Have Limits? Eldred v. Ashcroft and its Aftermath, in Open Content Licensing: Cultivating the Creative Commons (Brian Fitzgerald ed., Sydney Univ. Press 2007).
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Lawrence Lessig, The Vision for the Creative Commons: What are We and Where are We Headed? Free Culture, in Open Content Licensing: Cultivating the Creative Commons (Brian Fitzgerald ed., Sydney Univ. Press 2007).
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There’s a common belief that cyberspace cannot be regulated-that it is, in its very essence, immune from the government’s (or anyone else’s) control. Code, first published in 2000, argues that this belief is wrong. It is not in the nature of cyberspace to be unregulable; cyberspace has no “nature.” It only has code-the software and hardware that make cyberspace what it is. That code can create a place of freedom-as the original architecture of the Net did-or a place of oppressive control. Under the influence of commerce, cyberspace is becoming a highly regulable space, where behavior is much more tightly controlled than in real space. But that’s not inevitable either. We can-we must-choose what kind of cyberspace we want and what freedoms we will guarantee. These choices are all about architecture: about what kind of code will govern cyberspace, and who will control it. In this realm, code is the most significant form of law, and it is up to lawyers, policymakers, and especially citizens to decide what values that code embodies. Since its original publication, this seminal book has earned the status of a minor classic. This second edition, or Version 2.0, has been prepared through the author’s wiki, a web site that allows readers to edit the text, making this the first reader-edited revision of a popular book.
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There’s a common belief that cyberspace cannot be regulated-that it is, in its very essence, immune from the government’s (or anyone else’s) control. Code, first published in 2000, argues that this belief is wrong. It is not in the nature of cyberspace to be unregulable; cyberspace has no “nature.” It only has code-the software and hardware that make cyberspace what it is. That code can create a place of freedom-as the original architecture of the Net did-or a place of oppressive control. Under the influence of commerce, cyberspace is becoming a highly regulable space, where behavior is much more tightly controlled than in real space. But that’s not inevitable either. We can-we must-choose what kind of cyberspace we want and what freedoms we will guarantee. These choices are all about architecture: about what kind of code will govern cyberspace, and who will control it. In this realm, code is the most significant form of law, and it is up to lawyers, policymakers, and especially citizens to decide what values that code embodies. Since its original publication, this seminal book has earned the status of a minor classic. This second edition, or Version 2.0, has been prepared through the author’s wiki, a web site that allows readers to edit the text, making this the first reader-edited revision of a popular book.
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Virginia Rutledge, Lawrence Lessig, Allan R. Adler & Nick Taylor, Slouching Toward Alexandria: A Roundtable on Google's Library Project, 12 Artforum Int'l Supp. Bookforum 36 (2006).
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To many, the dream of a digital Alexandria seemed a giant step closer to reality when, in December 2004, the search engine Google announced that it had entered into agreements with the New York Public Library and four major universities to digitally scan their collections so that Internet users worldwide could search them. In September 2005, the Authors Guild, the largest society of published writers in the United States, filed a class action lawsuit alleging that Google's Print Library Project-since renamed the Google Books Library Project-constituted "massive copyright infringement." Pointing to Google Print for Publishers, an earlier program in which Google partnered with various publishing companies, the Authors Guild and the AAP say that copyright holders' permissions should also be required for the Google Books Library Project and that compensation should at least be discussed for any use of works that results in copies of the original material.
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I start with the words of someone famous, and then an account of the deeds of someone not quite so famous, as a way of framing an argument about the commons in cyberspace. First the words. In a letter written late in his life, Thomas Jefferson, the first commissioner of the patent office, commenting about the limited scope of patents, had this to say about the very idea of protecting something like an idea: If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possess the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lites his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement, or exclusive appropriation.
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Lawrence Lessig, On the Internet and the Benign Invasions of Nineteen Eighty-Four, in On "Nineteen Eighty-Four": Orwell and Our Future 212 (Abbott Gleason, Jack Goldsmith & Martha C. Nussbaum, eds., 2005).
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Bruce Owen's recent Regulation article "Assigning Broadband Rights" (Summer 2004) considers two resources: "the right to control access to a local broadband system" and "the right to determine the technical standards that describe which transmissions will or will not be processed for local distribution." With each "right," he immediately moves to consider who, between the owner of physical assets and users of the network, should have the right he has identified. But should the resources that he has identified be subject to a property regime at all?
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Lawrence Lessig could be called a cultural environmentalist. One of America’s most original and influential public intellectuals, his focus is the social dimension of creativity: how creative work builds on the past and how society encourages or inhibits that building with laws and technologies. In his two previous books, CODE and THE FUTURE OF IDEAS, Lessig concentrated on the destruction of much of the original promise of the Internet. Now, in FREE CULTURE, he widens his focus to consider the diminishment of the larger public domain of ideas. In this powerful wake-up call he shows how short-sighted interests blind to the long-term damage they’re inflicting are poisoning the ecosystem that fosters innovation. All creative works—books, movies, records, software, and so on—are a compromise between what can be imagined and what is possible—technologically and legally. For more than two hundred years, laws in America have sought a balance between rewarding creativity and allowing the borrowing from which new creativity springs. The original term of copyright set by the First Congress in 1790 was 14 years, renewable once. Now it is closer to two hundred. Thomas Jefferson considered protecting the public against overly long monopolies on creative works an essential government role. What did he know that we’ve forgotten? Lawrence Lessig shows us that while new technologies always lead to new laws, never before have the big cultural monopolists used the fear created by new technologies, specifically the Internet, to shrink the public domain of ideas, even as the same corporations use the same technologies to control more and more what we can and can’t do with culture. As more and more culture becomes digitized, more and more becomes controllable, even as laws are being toughened at the behest of the big media groups. What’s at stake is our freedom—freedom to create, freedom to build, and ultimately, freedom to imagine.
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Lawrence Lessig, Jonathan L. Zittrain, Charles R. Nesson, William F. Fisher & Yochai Benkler, Internet Law (Found. Press 2002).
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Who owns the Internet? Until recently, nobody. That's because, although the Internet was "Made in the U.S.A.," its unique design transformed it into a resource for innovation that anyone in the world could use. Today, however, courts and corporations are attempting to wall off portions of cyberspace. In so doing, they are destroying the Internet's potential to foster democracy and economic growth worldwide.
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The Internet revolution has come. Some say it has gone. In The Future of Ideas, Lawrence Lessig explains how the revolution has produced a counterrevolution of potentially devastating power and effect. Creativity once flourished because the Net protected a commons on which widest range of innovators could experiment. But now, manipulating the law for their own purposes, corporations have established themselves as virtual gatekeepers of the Net while Congress, in the pockets of media magnates, has rewritten copyright and patent laws to stifle creativity and progress. Lessig weaves the history of technology and its relevant laws to make a lucid and accessible case to protect the sanctity of intellectual freedom. He shows how the door to a future of ideas is being shut just as technology is creating extraordinary possibilities that have implications for all of us. Vital, eloquent, judicious and forthright, The Future of Ideas is a call to arms that we can ill afford to ignore.
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In this paper, we address the question of "open access" and its relationship to the architecture of the Internet. It is our view that the extraordinary growth and innovation of the Internet depends crucially upon this architecture. Changes in this architecture should be viewed with skepticism, as they may in turn threaten this innovation and growth. Many cable companies have recently adopted or threatened a policy of bundling high-speed cable modem service with ISP service. This bundling threatens to compromise an important architectural principle of the Internet: the Internet's "End-to-End" design. In our view, this change could have profound implications for the future of growth and innovation on the net. The FCC's analysis of the cable modem industry to date has not considered these principles of the Internet's design. It therefore does not adequately evaluate the potential threat that bundling presents to open access to the Internet. Neither does the FCC's approach properly account for its role in creating the conditions that made the Internet possible. Under the banner of "no regulation," the FCC threatens to permit this network to calcify as earlier telecommunications networks did. Further, and ironically, the FCC's supposed "hands off" approach will ultimately lead to more rather than less regulation. We do not yet know enough about the relationship between these architectural principles and the innovation of the Internet. But we should know enough to be skeptical of changes in its design. The strong presumption should be in favor of preserving the architectural features that have produced this extraordinary innovation. The FCC's presumption should be against approving mergers or policies that threaten these design principles, without a clear showing that the threat would not undermine the Internet's innovation.
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The Internet was the first large-scale network to adopt this principle of design. Before it, telecommunications networks were designed so that the owner of the network could control how it was used. This was, for example, how the old telephone network was designed. AT&T got to decide what uses were made of it; new uses were permitted only if they conformed to AT&T's business model. Innovation was as AT&T thought best.
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The model of university as producer of knowledge-as-product-for-sale is a closed one. Knowledge is treated as property to be copyrighted, patented, classified, licensed, and litigated. Under this closed model, creative work cannot progress without negotiations about license fees (the ambit of legal "fair use" at a minimum). As faculty become work-for-hire, money becomes the currency of the campus, and legality the dominant feature of relationship. Under this model, the nature of Harvard will change fundamentally - for the worse, I think. The community of scholars at the heart of the academy trades riches for a comfortable secure environment in which to think, research, and teach. This community, comprised of intellectuals who do not hold money paramount, will be oppressed by a commercial/legal environment. The Berkman Center aspires to demonstrate a different model - open IT, we call it. We encourage cooperative work dedicated to the open domain. Faculty, students, staff, alumni, relatives, and friends are permitted and encouraged (though not required) to work together in the public interest. Intellectual community and creative process is our product, knowledge the by-product. This approach galvanizes spirit and produces educational works of great distinction and wide public utility. Furthermore, this model maintains the community of scholars while avoiding the meanness of money and licenses. It will enhance the prestige of the institutions that contribute and become part of it. But there are questions.
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There’s a common belief that cyberspace cannot be regulated—that it is, in its very essence, immune from the government’s (or anyone else’s) control.Code argues that this belief is wrong. It is not in the nature of cyberspace to be unregulable; cyberspace has no “nature.” It only has code—the software and hardware that make cyberspace what it is. That code can create a place of freedom—as the original architecture of the Net did—or a place of exquisitely oppressive control.If we miss this point, then we will miss how cyberspace is changing. Under the influence of commerce, cyberpsace is becoming a highly regulable space, where our behavior is much more tightly controlled than in real space.But that’s not inevitable either. We can—we must—choose what kind of cyberspace we want and what freedoms we will guarantee. These choices are all about architecture: about what kind of code will govern cyberspace, and who will control it. In this realm, code is the most significant form of law, and it is up to lawyers, policymakers, and especially citizens to decide what values that code embodies.
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This chapter proposes an abstract model of mandated access controls for the Internet. The model includes three types of actors: senders, intermediaries and recipients. Control decisions are based on three types of information: the item, the recipient's jurisdiction, and the recipient's type. With the architecture of today's Internet, any party on whom responsibility might be placed has insufficient information to carry out that responsibility. That architecture could be changed to provide senders and intermediaries more information about recipient jurisdiction and type or to provide recipients and intermediaries more information about item types. Although such changes are possible, they would be costly in terms of time, money, and freedom. Moreover, such changes would have side effects of enabling regulation of the Internet by both public and private entities, beyond the scope of any legitimate government interest in controlling access to information.
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This essay examines the effect that the open source, or free software movement (open code for short) might have on the regulability of behavior on the internet. I begin by distinguishing two kinds of rules, only one of which imposes constraints that individuals might ordinarily have a persistent desire to evade. I then claim that the emergence of open code movement undermines the government's ability to regulate behavior by regulating code. Open code, the argument is, thus functions as a limit on state power.
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Lawrence Lessig & Yochai Benkler, Net Gains: Will Technology Make CBS Unconstitutional?, New Republic, Dec. 14, 1998, at 15.
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This article uses citations to the published opinions of judges on the federal courts of appeals who had 6 or more years tenure at the end of 1995 to estimate empirically the influence of individual judges. We rank judges on the basis of both total influence (citations adjusted for judicial tenure and other variables) and average influence (citations per published opinion). We also analyze the effects of factors that may be relevant to explaining differences in the influence of individual judges. These factors include both characteristics of the judges (for example, quality of law school, law school performance, sex, race, prior experience, political affiliation) and characteristics of the circuit in which they sit (such as the mix of cases in the circuit). In an appendix, we use citations to the published opinions in each circuit rather than to individual judges to measure the influence of circuits rather than individual judges.
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In this essay, the author introduces an approach (“The New Chicago School”) to the question of regulation that aims at synthesizing economic and norm accounts of the regulation of behavior. The essay links that approach to the work of others and identifies gaps that the approach might throw into relief.
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Lawrence Lessig, What Things Regulate Speech: CDA 2.0 vs. Filtering, 38 Jurimetrics J. 629 (1998).
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Activists are pleased that the CDA went down. In this rant, I worry over the politics of what might rise up in its place. One target of this attack is PICS (Platform for Internet Content Selection.) PICS is a regulator, this essay argues. As with any regulator, we need to be careful about the politics of its rules.
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Two Articles from this volume of the Harvard Law Review propose changes in the role of federal courts. One, by Curtis Bradley and Jack Goldsmith, argues that customary international law should not be considered federal common law, despite the contrary beliefs of many international lawyers. The other, by Dan Kahan, proposes that Chevron deference be granted to the Department of Justice's interpretation of criminal statutes. In this essay, Professor Lessig argues that the two Articles have more in common than might at first appear: both Articles attempt to make a commonly accepted practice contestable, and bid to change that practice in a manner that delegates decisionmaking power to more democratically accountable actors. The proposals of both Articles follow a pattern that Professor Lessig calls the Erie-effect. In this pattern, changes in context as well as changes in the practice at issue make it possible to question the legitimacy of continuing to engage in the practice and push the issue to the foreground of public attention. This essay hopes to spark debate on the proper role of context in interpretive theory by using the lens of the Erie-effect to explore how practices are rendered contestable.
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Lawrence Lessig, Reading the Constitution in Cyberspace, 45 Emory L.J. 869 (1996).
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We might distinguish between two types of constitutional regimes, one codifying, the other transformative. A codifying constitutional regime aims at preserving something essential from the then-current constitutional or legal culture?to protect it against change in the future; a transformative constitutional regime aims at changing something essential in the then-current constitutional or legal culture to make it different in the future. The picture of the codifying regime is Ulysses tied to the mast; the picture of the transformative is revolutionary France. In our constitutional tradition, the Constitution of 1791 was a codifying constitution?the Bill of Rights, that is, was a constitutional regime that sought to entrench certain practices and values against change. The Civil War Amendments, on the other hand, were transformative, aiming to remake something of what the American social and legal culture had become, to tear out from the American soul its tradition of inequality, and replace it with a practice of equality.