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<nettime> "Marxist-Lessigism" by Dan Hunter in legalaffairs.org
Anivar Aravind on Sat, 18 Dec 2004 10:22:29 +0100 (CET)

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<nettime> "Marxist-Lessigism" by Dan Hunter in legalaffairs.org


Computer users of the world have united behind Stanford law professor 
Lawrence Lessig-and what they're doing is much more important than his 
critics realize.

By Dan Hunter

Legal Affairs (Nov-Dec 2004)

AT SWARTHMORE COLLEGE, the crowd is mostly students, and maybe a few 
professors and interested outsiders. It's a typical turnout for a public 
lecture by a well-known law professor. But there is something different 
and a little odd about this group. Swarthmore doesn't have a law school, 
so the audience includes no young men in suits that still have the label 
attached, and no young women with high-heeled shoes so new the soles 
aren't scuffed. And there is something else, something funny about the 
T-shirts. Everywhere you look, there are T-shirts with slogans, not logos. 
No "Tommy Hilfiger" and "Ralph Lauren" here. Just shirts with references 
too obscure to parse. What is "Downhill Battle"? Or "Grey Tuesday"? One 
kid has a shirt with the picture of a skull and crossbones on it, and 
written boldly across it are the words "Home Taping is Killing the Music 
Industry." Look closer, and you'll see, in tiny type, "(And it's fun)."

A couple of students get up to introduce the speaker. They're nervous, 
disorganized, and rambling. Now you notice the handmade signs: "Swarthmore 
Coalition for the Digital Commons" is taped to the lectern, and "Free 
Culture" is written on the wall. It starts to become clear. This isn't 
just a lecture; it's a political rally. People start to shuffle; the 
students are losing their audience as the garbled introductions continue. 
But when the speaker gets up to start, the shuffling ends and there is a 
ripple of excitement. He is Lawrence Lessig, the Stanford law professor, 
known to this crowd as Larry. Dressed in black and wearing a pair of 
spectacles that could have been handed down by Ben Franklin, he waits 
until the crowd settles. And finally, you get it. Outside, lightning is 
cracking, but the smell in the air is not the ozone from the thunderstorm. 
It's the smell of revolution.

INTELLECTUAL PROPERTY-"I.P.," AS IT'S CALLED-revolves around three basic 
property interests granted by federal statute: copyrights, patents, and 
trademarks. Copyrights cover expression by authors of various sorts, 
including books, plays, music, and so on. Patents protect underlying ideas 
of useful inventions and processes, such as a chemical reaction or an 
inventive mechanical device. And trademarks cover business brands. For 
much of the 20th century, these I.P. interests (and other close cousins 
such as trade secrets, unfair competition, and celebrities' publicity 
rights) were narrow and uncontroversial. Businesses in the industrial era 
cared about the factory, the production line, and the land needed for 
them. But as the modern era rolled on, the importance of industrial 
production waned. No longer were heavy machinery and physical plants the 
predominant means of production; no longer was physical inventory central 
to industry. In the developed world, control over intangibles came to 
dominate the business agenda, and so too the political agenda.

First introduced in the United States in 1790, copyright was limited in 
its infancy to protecting musical, dramatic, literary, and artistic works 
for 28 years, and it was later broadened to encompass photography, video, 
and software for a period often in excess of 100 years. Patent scope was 
widened, first to include computer algorithms and then business 
methods-including those such as Amazon.com's patent for one-click online 
purchases-and then life itself. In 2000, companies including Celera 
Genomics and Incyte started receiving patents on sequences of the human 
genome. Trademarks too were set loose from their historical moorings. Not 
only was the trademark term extended, but the prototypical application of 
a physical brand to a physical product was no longer the limit of 
trademark. The sound of the Harley-Davidson exhaust for motorcycles or a 
distinctive color of dry cleaning pads was equally protected.

Though I.P. rights are private property there has long been some sense 
that the public also has interests here. The concept of the public domain 
was first advanced in 1896, when the Supreme Court noted that upon the 
expiration of a patent the invention "fell into the public domain" and was 
free for anyone to use. But over the decades that I.P. rose in importance, 
the concept of the public domain was ignored, or defined at best in 
negative terms. It was the carcass left over after the I.P. system had 
eaten its fill.

Still, the seeds of the movement that Larry Lessig now leads blossomed. In 
the late '70s, prompted by cases examining whether the heirs of Bela 
Lugosi and Rudolph Valentino could control the current and future 
representations of these dead actors, a young Duke University law 
professor named David Lange attended an entertainment law symposium to 
present a paper on celebrities' rights to their public image. Lange was 
surprised at the distress of the screenwriters who attended his talk and 
who argued that expanded publicity rights would reduce their ability to 
adapt, use, or reimagine these characters and their histories. As Lange 
described it, "the law of publicity was dispossessing individual creators 
in order to benefit the interests of celebrities." From this epiphany, 
Lange recast the public domain. Rather than the negative leftovers, he 
wrote in an influential article 25 years ago, the public domain was a 
vital, affirmative entity, the publicly accessible collection of 
knowledge, ideas, history, and expression on which creators draw in order 
to make new works.

The movement in defense of the public domain soon started to grow. 
Academic works in the '80s and '90s by law professors Jessica Litman at 
Wayne State University, Wendy Gordon at Boston University, Pamela 
Samuelson at the University of California at Berkeley, and James Boyle at 
Duke University explored the public domain's importance. Then, with the 
1998 introduction of the Sonny Bono Copyright Term Extension Act and the 
Digital Millennium Copyright Act (or DMCA), the public woke up.

These statutes extended copyright terms, renewed copyrights on some works 
that had already fallen into the public domain, and forbade cracking 
digital locks on copyrighted material like DVDs. But they also motivated 
public interest groups as never before. Before then, corporate interests 
lobbied for I.P. expansion without much public comment. This changed 
overnight as the acts were widely seen as driven entirely by corporate 
interests, particularly Disney's fear that the first film featuring Mickey 
Mouse would soon fall into the hands of the public. Unanticipated uses of 
the DMCA also drew widespread attention. The first incident occurred when 
a Princeton computer science professor was threatened with prosecution if 
he disclosed research that he and his lab had performed in breaking a 
music encryption system. Then a Russian student was arrested while 
presenting a conference paper that demonstrated how he had cracked 
digitally encrypted electronic books. By the time students at Swarthmore 
College were threatened in 2003 with a DMCA injunction against posting 
details of a potential e-voting election scandal, the message was clear. 
The restrictions on speech, the threat to research and inquiry, the 
quashing of dissent, the jailing of researchers-all of Lange's worst fears 
and then some-were now being realized.

The consequent backlash came at a bad time for I.P. owners. The rise of 
file-sharing systems threatened severe damage to the music and movie 
industries, and perhaps television networks. And social reformers were 
beginning to question other parts of I.P. For example, the patent system 
came under attack for the damage it inflicted on developing countries that 
had been strong-armed by the United States into adopting U.S.-style I.P. 
laws. This led to an increase in I.P. enforcement around the world, but it 
also demonstrated the clear injustices in forcing the poor to dance to the 
I.P. tune of the rich. American pharmaceutical manufacturers were vilified 
because they refused to provide drug therapies for HIV/AIDS in Africa for 
less than their patent-monopoly-controlled price. All the claims that drug 
manufacturers needed this monopoly to produce other important drugs rang 
hollow with the millions of people in the developing world dying from AIDS 
and their sympathizers.

Thus was the culture war joined. This is not a war between cultures, but a 
war over culture-who owns it, who can use it in the future, and how much 
it will cost. On one side are the I.P. owners, with the money and the ear 
of government. Against them stand research and advocacy institutes, with 
names like Creative Commons or the Center for the Public Domain, and 
political action groups such as the Electronic Freedom Foundation and the 

doing at Swarthmore on a wet night in April. He's talking about his new 
book, Free Culture, in which he argues for scaling back the copyright 
system. Lessig is a prodigy of the legal academy: Now 43, he earned a B.A. 
in economics and a B.S. in management from the University of Pennsylvania, 
an M.A. in philosophy from Cambridge, and a J.D. from Yale Law School. He 
clerked for Richard Posner of the Seventh Circuit Court of Appeals and for 
Antonin Scalia of the Supreme Court, and he was a professor at the 
University of Chicago and Harvard Law Schools before Stanford lured him in 
a competition with Yale and Harvard. His rZsumZ lists four books and 61 
law review articles produced in his 15-year career as a legal academic. 
But not everything he has touched has turned to gold. While he has written 
about aspects of the Constitution dealing with subjects other than 
intellectual property, the constitutionalists in the academy greet some of 
that work with derision and even his admirers often consider him an 
extravagant self-promoter.

With his dazzling academic record, fiery rhetoric, and prolific writing, 
however, Lessig has become the most recognizable voice to articulate why 
it was a bad idea to privatize the open environment of the Internet, and 
how the expansion of I.P. threatens future innovation. Tonight he's 
lending support to a student protest group, one formed by the students 
threatened when they exposed the electronic voting scandal. Like other 
student groups, this one is renouncing private I.P. interests, has the 
word "commons" in its name, identifies with the I.P. have-nots, and 
invokes a class struggle. Means of production, communal ownership, class 
struggle, students with slogans on their shirts. Sounds like a Marxist 

LIKE MANY OTHER I.P. REFORMERS, Lessig is routinely denounced as a 
communist. The most recent such attack was by a high-profile technology 
columnist named Stephen Manes. In several vitriolic attacks prompted by 
Lessig's Free Culture, Manes described Lessig as "blustering" and 
"bloviating," a "buffoon" and an "idiot," whose ideas ("droppings") were 
"nuts" and "laughable." Manes contrasted Lessig's "radicalism" on 
copyright policy with the stance of "responsible creators" like Walt 
Disney, and made it clear that the sort of reform Lessig advocates is 
ideologically suspect because it involves stealing property from copyright 
owners. Manes proposed renaming Lessig's book, Freeloader Culture: A 
Manifesto for Stealing Intellectual Property. The allusion to Karl Marx 
and Friedrich Engels's Communist Manifesto is hard to miss.

Manes's attacks, though startling in their bile, are hardly surprising. He 
is a columnist at Forbes, a magazine that urbanely styles itself as the 
"Capitalist Tool." If any organ is going to spy Marxist leanings in the 
intellectual property reform movement, it is this one. Manes is not the 
first to sniff Marxism in I.P. reform proposals. A senior writer at the 
Ayn Rand Institute accused Lessig of Marxism a number of years before, 
suggesting that his efforts in the case of Eldred v. Ashcroft, in which 
Lessig argued for overturning one of Congress's many recent copyright 
extensions, were shameful and would lead to "cannibalism" of property 
interests. Mouthpieces for high-profile I.P. owners such as Paramount 
Pictures also smell "whiffs of Marxism" in the reformer's distaste for 
corporate control of culture.

The Marxist slur is a simple rhetorical device that paints I.P. reformers 
as both dangerous and willfully ignorant. Not only do they desire a 
Bolshevik revolution, and probably a Stalinist purge, but these reformers 
don't realize that the communists lost the Cold War. Yet this use of the 
"Marxist" tag is shallow and empty.

When people such as Manes or those at the Ayn Rand Institute charge Lessig 
with Marxism, they refer to two features of Marxist-Leninism: the 
rejection of private property, and the civil uprising that Mikhail Bakunin 
and V.I. Lenin said was necessary to move from capitalism to communism. 
The kind of social reform of intellectual property proposed by Lessig 
doesn't involve either of these elements. Lessig isn't some modern-day 
Pierre-Joseph Proudhon claiming that "intellectual property is theft." His 
reform agenda is the I.P. analog of the New Deal social welfarism that 
ameliorated the worst excesses of capitalism, and rescued it from social 
disaster. It's the recognition that private property systems function 
better if some limits are placed upon the market. Even many of the most 
ardent capitalists have learned the Marxian lesson that unrestrained free 
market capitalism creates a permanent underclass that is much more likely 
to revolt and overthrow the system. It's a better idea for the wealthy to 
provide a safety net for the lumpenproletariat than to be the first up 
against the wall when the revolution comes.

the destruction of private property, it stirs a Marxian debate in a much 
more interesting and crucial sense. For starters, it is clear that I.P. 
reform is a conflict involving a significant class struggle. There are 
I.P. haves and I.P. have-nots. And in a world where the means of 
production are increasingly controlled by intellectual property, the 
dynamics exist for significant conflict. But the majority of the I.P. 
have-nots are in the developing world, which is why the globalization 
debate often involves intellectual property. Any Marxist-Lessigist 
revolution therefore is likely to be mediated through the cordon sanitaire 
of international trade, and through the World Trade Organization. The 
prospect of I.P.-induced violence, at least in the United States, is 

But more than this, I.P. reform arises out of a genuine Marxism, that of 
the open source movement. Open source, or "copyleft," as the movement is 
often called, involves the transfer of the means of cultural and creative 
production from capital to the worker. It is usually thought to be limited 
to computer software. The Linux operating system was created by thousands 
of programmers and has been freely distributed on the understanding that 
others might amend, fix, improve, and extend it. But while software might 
be the paradigmatic example of open source, the revolution it promises 
reaches much further. The widest-read and most influential newspaper in 
South Korea is Ohmynews, whose motto is "Every Citizen is a Reporter." 
Ohmynews hires no reporters, and relies wholly on individual contributions 
of news stories by its readers. Another example is the Wikipedia, an open 
source, online encyclopedia that is entirely written, edited, and 
rewritten by anyone who cares to contribute to it. Even though there is no 
control structure-there are no editors, nor is there a publisher-it rivals 
commercial encyclopedias in scope and quality of coverage. Or consider the 
Distributed Proofreader's Project, a group of people who volunteer to 
proofread and edit vast reams of scanned documents for inclusion in 
Project Gutenberg, another open source initiative that puts 
out-of-copyright books online.

Though Bill Gates recognizes Linux as a threat to Windows, it is easy to 
miss the truly revolutionary nature of this type of cultural production. 
If you give people the opportunity to create, they will do so, even 
without economic incentives. The core justification for intellectual 
property protection is that, without it, no one would have any reason to 
produce cultural, creative content. They would undertake a rational 
calculus and go off to become tax attorneys. But the dynamism of the open 
source movement shows that this fundamental justification doesn't hold. 
Many people will produce creative content even outside what we can think 
of as the capitalist underpinnings of I.P. It's a small step to go from 
this to a Marxist revolution: The open source movement promises to put the 
means of creative production back in the hands of the people, not in the 
hands of those with capital.

It is not an accident that open source and Marxist-Lessigist I.P. reform 
have occurred at the same time, or that Lessig is a prominent advocate of 
Linux. Open source software demonstrated that the "incentive 
justification" for I.P. wasn't supported once you put the means of 
creative endeavor and the means of dissemination in the hands of 
individuals, as the Internet has done for many fields. So, when the DMCA 
and other corporate-controlled I.P. expansions came about, programmers 
weaned on open source code no longer bought the corporations' arguments 
that these new laws were necessary for innovation and progress to 
continue. The I.P. reform movement began with software, but it is moving 
into all types of cultural material: newspapers, magazines, commentary, 
music, even movies. Given the experience we now have with open source, 
this is not strange. A Marxist might suggest that it is inevitable. What 
is unusual is how, in their rush to vilify Marxist-Lessigism, I.P. owners 
and copyright apologists like Stephen Manes miss the importance of open 
source, which, as the true creative workers' revolution, threatens the 
core of their industries. While copyright and patent reform might be the 
most visible aspect of the Marxist-Lessigist revolution, it is the least 

IT'S STILL RAINING AT SWARTHMORE. Larry Lessig is explaining the 
importance of the public domain as a source for future creativity, when a 
series of thunderclaps shakes the auditorium. For a moment everybody 
stops. Lessig jokes about the "black helicopters" of the I.P. owners, and 
people relax.

At the end of his presentation, student activists swamp him with requests 
for guidance about what they should do next. They plot how to reverse the 
enclosure of the public domain. If nothing else, these students are 
engaged with the political process of intellectual property in a way that 
has never been seen before. The expansion of I.P. has led to the creation 
of a movement that is fascinating in two ways: It guarantees that the 
public will have a voice in future I.P. policy making, and it has created 
a new kind of student movement that is one of the more active political 
movements on college campuses. There are no riots, but this movement 
promises a more socially conscious intellectual property system, one 
achievable without bloodshed.

But away from the zeal of the student activists, the real revolution is 
taking place. None of the revolutionaries recognize themselves as 
such-they're just open source programmers or "citizen journalists." But 
they promise to upend the intellectual property system because they are 
creating things for the sake of curiosity, or for the approbation of their 
peers, or because it's fun. This revolution will just happen, as people 
take up the means of production for themselves-and even if it won't be 
televised, it will surely be reported in Ohmynews.

Dan Hunter teaches at the University of Pennsylvania.


CIRCULATED EARLIER VIA: APC Forum is a meeting place for the APC community 
-- people and institutions who are or have been involved in collaboration 
with APC, and share the APC vision - a world in which all people have 
easy, equal and affordable access to the creative potential of information 
and communication technologies (ICTs) to improve their lives and create 
more democratic and egalitarian societies.


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