The most articulate and vocal spokesman for the Electronic Freedom Foundation, Lessig commonly promotes his ideas about "free software" in print. Few have the temerity and intellectual horsepower to point out his errors. I doubt I'm any better at it that the others, but it's worth a try.
To his credit, Lessig correctly points out a serious flaw in American copyright law, and I agree with him that the legislative trend is in the wrong direction. Then we part company.
Lessig severely damages his credibility, if not veracity, by tying his position to Richard Stallman's notion of "copyleft". Stallman is a Marxist -- if not in name, then certainly in disposition. Marxism, you will recall, is an economic system that was given a fair trial in a number of countries, and then overwhelmingly rejected by the people forced to live under it. It now survives only on the faculties of a few universities where its proponents were never forced to endure its consequences, and in a few has-been eastern-bloc bureaucrats, who likewise. The basic premise of Marxism, as stated by its early promoters, was "From each according to his ability, to each according to his need." In practice, this devolves down to something closer to "Put in as little as possible, and take out as much as possible." Capitalists go at it the same way, but because what you can take out is closely coupled to how much you put in, people are motivated to put more into the system, thereby raising the wealth of everybody (even the slackers and Marxists among us).
Stallman and Lessig promote a more limited form of Marxism, limited to intellectual property only, but the principle is the same. The most vocal proponents of "free software" hope to take more out of the system than they put in. Those actually making substantial contributions -- I'm thinking here of Linus Torvalds, creator of Linux -- tend not to promote the concept quite so vigorously; it's like he has little or no interest in taking software out of the system, but it was a convenient way to promote his own skills in the otherwise predominantly capitalist labor market. Really creative people are like that: excellence comes so easily to them that giving a little away now and then is no big deal. I've watched this effect numerous times in different people. It's the "suits" (pointy-haired managers who produce nothing on their own) who try to guard what little they have and acquire what they don't have.
Marxism is a fine idea in a zealot community where everybody believes in the same cause and they are willing to work together to achieve it. In the real world these communities are small and outcast. It is also important that their shared cause be something other than personal gain. The Marxists at universities (including both Lessig and initially Stallman) are on adequate salaries; they don't need to worry about how to feed their families or pay their rent. They are not promoting Marxist educational systems (they do not hold classes for, nor grant degrees to the public at no cost). If they did, they would soon be out of a job and forced to market their labor like the rest of us. Marxism only works (if at all) as a minority position in a much larger market driven by capitalist forces.
The so-called "copyleft" notion has another serious flaw: despite what they tell us, it is not about truly free software, free from all restrictions. There is a long-standing way to make something truly free, and Lessig and Stallman both know about it, and chose not to do that. It's called "public domain." The Gnu Public License is not free; if you build on a GPL property, you are forced to put your labor into their Marxist pool. You pay for the right to build by your labor. You make no required payment at all to build on a public domain base. You are truly free to release your work or not. That is freedom; the GPL is a form of slavery.
Despite their best intentions, the GPL only works by depending on copyright, as Lessig correctly states. When that copyright expires (75 years after the death of the author, under current law), all that "free software" becomes truly free, with no restrictions whatsoever, not even the requirement to put your labor back into the pool. Of course 75 years is far too long for any software copyright; it has long since become worthless. But Lessig is not arguing more sensibly for a reduction in the term of software copyrights. Lessig wants to lord it over the users of the intellectual property in his stable, to specify what they can and cannot do with his copyrights, while denying that same right to the other owners. Lessig is a hypocrite.
Lessig's essay is further damaged by several technical errors. He attributes to a 1909 "error in the wording" the current copyright protection of copies, completely ignoring the original Copyright Law of 1790 which used the word not only in its text but also in its very name. It's about the right to copy, that's why it's called a "copyright." That fundamental idea has not changed since George Washington himself signed it into law. The notion was at least 119 years old in 1909.
Lessig is also unduly alarmist about the technology of "digital rights management" (DRM). I agree that DRM is wrong-headed and an abuse of the intent of the Framers of the Constitution, and that DRM proponents are every bit as greedy in managing their copyrights as the "free software" folks are greedy to take it away from them. But technology cannot prevent copying, any more than it can prevent spam. All legally enforced technology can do is make unlawful copying slightly more difficult. It hasn't even done that for spam, which has increased tenfold since Congress passed the spam enabling ("Can-Spam") act. We have 20 years of experience on the ability of technology to stop unauthorized copying of floppy disks. Nobody bothers to try any more, because they can't. If Congress passes an even more onerous DMCA ("Digital Millenium Copyright Act", which already makes it illegal to exercise free speech telling you how to bypass anti-copy technology), then more of the work will be done overseas. It cannot be stopped by law-enforced technology, only pushed into other countries.
Pirate copying can be stopped -- or at least slowed down to where it is not much worse than the traditional "fair use" policy that the law and the courts upheld until the DMCA abomination came about -- and it's called "iTunes" (or any of its many competitors), no change in law needed.
Lessig goes on to claim, "No society has ever imposed the level of control that the proprietary culture of digital technologies and DRM would enable." Perhaps not de jure, as Lessig claims is now being proposed, but he didn't say "no government" ever imposed it. The fact is, technology itself imposed that restriction from the dawn of time until very recently. There simply was no way to make the kinds of copies that anybody at all can make today. You could hand-write a copy -- but then no technology or chip being proposed even now can prevent that.
Lessig worries about the limits in creativity when intellectual property owners seek to prevent "remixing" of their properties. Utter nonsense! What happens is that people are released to new levels of creativity unhampered by old forms. Consider what happened when Warner Chappell bought the rights to "Happy Birthday" in 1990 and started vigorously enforcing what is now recognized as an invalid copyright: All of a sudden restaurants stopped singing it and came up with a royalty-free clapping song in its place. When Adobe got greedy with PostScript fonts, Apple and Microsoft got creative and invented TrueType.
Lessig knows about this remedy. He even mentions a variation of it himself, remarking that the Brazilians intend to stop infringing Microsoft copyrights by ceasing to use Microsoft products. I say Bravo!
Unfortunately, free software tends to be worth what you pay for it. Linux enjoys a robust 3% of the market because only 3% of the computer users value their own many hours of time less than the $200 they might save if they bought Windows. Apache wins over the Microsoft product solely because the market for internet servers is so small that it does not justify the expense Microsoft would have to go to, to make their server easier to use than the open-source turkey.
The bottom line is still the bottom line. The number of people willing to program for free is a tiny fraction of the amount of programming that needs to be done. Who is going to pay for it? The government? In a Marxist economy, perhaps, but those countries mostly don't exist any more -- the few left are trying to re-invent their economies as something closer to what works so well here in the USA. Will Brazil's efforts at open-source work? I wish them the best of luck, but programmers -- even in poor countries like Brazil and China -- programmers need to feed their families.
Despite its occasional oscillations and excesses, the free market (including the property rights to support it) does an awesome job of increasing wealth for everybody, while balancing the interests of producers and consumers. When the rights holders get greedy, the market will swing back toward the consumers -- as indeed it is doing with "piracy" -- and when the consumers get greedy, it swings the other way, with DRM. Balance.
Professor Lessig has his head stuck in the 1930s sand.
