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Cyberlaw is a relatively new area of jurisprudence and telecommunications policy, where technology and law intersect. From the controversies over intellectual property rights, free speech, fair use and other issues has emerged a voice described in as the “Paul Revere of the Web” (Mullaney & Greene). Lawrence Lessig is both an intellectual and an activist, a constitutional scholar and an original thinker who has an enormous following not only in academic circles but also in the popular press and in the web logs of cyber geeks and Internet activists.
Lessig was born in 1961 in South Dakota, but at an early age his family moved to Williamsport, Pennsylvania. Intellectually gifted, he was passionate about politics and enjoyed computers as a hobby. He received a B.A. in Economics and a B.S. in Management (from the Wharton School) from the University of Pennsylvania in 1983. Three years later he graduated with honors from Trinity College with a master’s in Philosophy. In 1989 he completed his studies at Yale Law School.
Popularly known as a “liberal” today, Lessig had been a staunch Republican since high school, and he began his career as the protegé of rather conservative judges. In 1989 he worked for Judge Richard Posner, US. Court of Appeals, Seventh Circuit, and then the following year he clerked for Supreme Court Justice Antonin Scalia.
An itinerant scholar early in his career, Lessig moved from school to school during a period that included a stint in Budapest College, Hungary (1992-94). In the United States he taught at Yale Law School (1995); at University of Chicago (1991-1997) where he received tenure; and at Harvard Law School (1997-2000) where he was Jack N. and Lillian R. Berkman Professor for Entrepreneurial Legal Studies (1998). Currently, Lessig is Professor of Law and (as of 2003) John A. Wilson Distinguished Faculty Scholar at Stanford University (2000-present), where he teaches courses in constitutional law, open source, patents, and contracts.
He currently writes for Wired Magazine (since 2003). He also has served on the board for a number of organizations relating to such issues in cyberlaw as freedom of expression and intellectual property rights:
Lessig has been a prolific writer, producing four books, 61 articles, and 90 essays. He has presented papers and/or addressed over 200 seminars, conferences, and workshops worldwide. With the publication of Code: And Other Laws of Cyberspace in 1999, Lessig synthesized many of his writings on software code as having the force of law. At that time, the Internet was (and is) seen as an unregulable space of freedom. Lessig, however, demonstrated that in cyberspace as in real life, actors are constrained and regulated by the law, the market, and architecture (viz. code). But at the same time these four modalities may protect the actor from harm by other three. Companies are designing the architecture of cyberspace to violate free speech, privacy, competition, and courts and legislatures must intervene, but only insofar as to change the architecture to be more what the Internet was originally envisioned to be. “If the architecture is correct, there’s less need for government to intervene to protect values or to perfect competition” (qtd. in Mullany & Greene).
The publication of Code established Lessig as a leader in cyberlaw and confirmed his conversion from the American right wing to the left — though as the quote above illustrates it would be an oversimplification to say that he is staunchly pro-government regulation. As he makes clear The Future of Ideas (200X), in the areas of intellectual property rights and spectrum allocation he favors less government control, with some exceptions. He argues that government should prevent corporations from using legal and technical means (such as copyright abuse) to stifle creativity and destroy the innovation commons that is the Internet.
The Future of Ideas ends with a call to action to halt the Internet from falling under systems of control by “Big Media.” Lessig hones both his ideas and his activism in his third book, Free Culture. In this monograph he analyzes the tensions between free exchange of ideas on the hand and intellectual property rights on the other. He argues that we are in danger of losing a great number of works due to over-assertion copyright law, and discusses in detail his experiences and mistakes in the case of Eldrich v. Ashcroft (see Major Litigation, below). Free Culture is Lessig’s first book to be published under the Creative Commons License, a flexible copyright alternative (see Organizations for more information, below), and as such is available either in bound format by Penguin books or for free . The book inspired Nelson Pavlovsky to found the Free Culture movement at Swarthmore college in 2004 (Lessig spoke at its inauguration).
In addition to his writings, Lessig gained fame by participating in several court cases either as a consultant, as amicus curiae, as expert witness, or (rarely) as counsel. Two cases in particular have generated a lot of controversy and press attention, and they are particularly representative of Lessig’s philosophy and work: Eldred v. Ashcroft (2003) and United States v. Microsoft (1997-2002).
In the late 1990s, the U.S. Department of Justice (DOJ), along with twenty states, sued Microsoft for violation of the Sherman Anti-Trust Act. The DOJ claimed that Microsoft had abused its monopoly power by bundling its operating system Windows and its web browser Explorer, and by tweaking the application programming interfaces (API) to favor Explorer — thereby crushing competition.
The presiding judge, Thomas Penfield Jackson appointed Lessig special master, which gave him the authority to evaluate technical data, interview witnesses, and most importantly make recommendations. Lessig also testified before the Senate Committee on the Judiciary. Microsoft’s attorneys objected to his appointment and claimed that he was biased. The pointed to his writings on code, and they took out of context a remark Lessig had made in an email after he noticed that installing Explorer had erased his bookmarks: “Sold my soul and nothing happened” (qtd. in Levy, p. 8). It is curious that they felt so strongly, for in his brief of amicus curiae submitted in 1999, Lessig did not take sides as to whether the tying of an operating system and a browser product were violations of the Sherman Act. Rather, he wrote that the Court has not considered the tying of two software products, specifically an operating system and a browser product because of a “fetishizing” of software code that incorrectly puts evaluation of design “uniquely beyond the ken of federal courts” (p. 7). The Microsoft case propelled Lessig to take a more activist stance.
The Sonny Bono Copyright Term Extension Act of 1998 (CTEA) extends all copyrights for an additional twenty years, from 50 to 70 years after the author’s death, or from 75 to 95 years in the case of works by a corporation. Not coincidentally, Congress passed CTEA just as Walt Disney’s 1928 “Steamboat Willie,” the first animated cartoon with sound, was about to enter the public domain.
Meanwhile, Eric Eldred, a retired programmer, who in 1995 had begun a website to make works in the public domain easily accessible to the world, wanted to include works by Frost that would have become public domain were it not for CTEA. Feeling very strongly that this was a constitutional issue, Lessig argued Eldred’s case before the Supreme Court in October 2002. In “How I Lost the Big One,” Lessig laments ironically that CTEA is most damaging not to Frost or Disney, who works are easily available to anyone who cares to read or view them. Rather, he writes, “The real harm is to the works that are not famous, not commercially exploited, and no longer available as a result” (n.p.), for only a fraction of the works of human effort have commercial value. Ironically, to digitally archive a book is to copy it and thereby infringe on the copyright, greatly hindering mass accessibility.
As a result, Lessig has proposed the Copyright Deregulation Act, aka the Eldred Ac. This law would levy a modest tax upon a copyright owner fifty years after a work is published. If unpaid for three years, the work would enter the public domain. Eldrich v. Ashcroft and Lessig’s proposal have inspired a “Save Orphan Works” social movement.
Not only a man of letters, Lessig is a man of action, founding two organizations: one academic and research-oriented, the other a practical solution to the problems he has described in his books and encountered in his practice. As part of the Law Science, and Technology Program at Stanford Law School, in 2000 Lessig founded the Center for Internet Society (CIS) to assemble researchers in academia, industry, and government on issues of cyberlaw. The website describes the center as “public interest” program that promotes democratic values (http://cyberlaw.stanford.edu/about/). The center will also represent clients in legal proceedings and provide public educational fora.
The following year, Lessig co-founded the non-profit Creative Commons in 2001 – along with Eric Eldred, fellow attorney James Boyle, filmmaker Guggenheim, and others – to promote the sharing and building of ideas. In 2002 the organization proclaimed its eponymously named license to provide a more flexible copyright alternative that is between the all-or-nothingness that current copyright structures have provided. In other words, whereas a full copyright reserves all rights and public domain reserves no rights, the Creative Commons License (CCL) reserves some rights. The CCL lets the author make combinations from four conditions to create eleven licenses (for some conditions are mutually exclusive). Interestingly, Creative Commons and CIS currently work closely together.
Lessig has received numerous awards and honors during his distinguished career. In 2002, the Free Software Foundation (FSF) conferred upon Lessig its Award for the Advancement of Free Software. Two years later, Lessig began serving on the board of directors of FSF.
In the age of mass communication perhaps one of the most flattering honors is to be depicted on a popular national television series; Lessig received such a laurel in 2005. Christopher Lloyd portrayed Lessig in an episode of The West Wing, entitled “The Wake-Up Call,” broadcast on NBC. A former student of Lessig’s at Harvard, Josh Singer, wrote the episode after Lessig related to the class how he assisted with the drafting of the Georgian constitution. In the episode, the country is Byelorussia, and other liberties with the truth were taken, as happens on TV. Lessig writes in his blog, however, that overall he was pleased because “The Wake-Up Call” shows that writing a constitution is not drafting a document but creating a “culture that respects the rule of law” (posted Feb. 10, 2005).
Comparisons to Paul Revere are certainly well-deserved. From author of Code to challenger of Microsoft and Disney to founder of the Creative Commons he has been a voice for the preservation of liberty, creativity, and innovation in cyberspace against corporate and governmental misuses of the law. The themes of liberty, choice, openness, and creativity have consistently comprised Lawrence Lessig’s writings and his actions. Because of his originality and because his writings no doubt resonate with fears that many hold, this constitutional scholar has achieved celebrity status not only in academic circles but also in the popular press, and he has inspired activist movements. He is a cyberlaw superstar.
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