Cyberspace's legal visionary: Lawrence Lessig on the fate of copyrights and computer networks in the digital future.

• Author: Walker, Jesse
• Position: Interview

FEW INTELLECTUALS HAVE influenced the way people think about cyberspace as much as Lawrence Lessig. His first book, Code and Other Laws OF Cyberspace (Basic Books, 1999), was described by one critic as "a direct assault on the libertarian perspective that informs much Internet policy debate." At the same time, by probing the complicated relationship between "East Coast code"--that is, legislation--and the "West Coast code" that creates the architecture of the Internet, the book changed the terms of the debate, influencing even the people Lessig was criticizing.

Last year's follow-up, The Future of Ideas: The Fate of the Commons in a Connected World (Random House), asks what allows innovation to take place online, examining such issues as Napster, software patents, and regulation of the electromagnetic spectrum. By explaining technology to the lawyers and law to the technologists, Lessig has deepened a lot of people's understanding of the Net. Few in the public policy community, for example, have given much thought to the different layers of cyberspace. By contrast, Lessig distinguishes the physical layer (the network's hardware and wires) from the logical layer (the protocols that determine who connects to what) and the content layer (the actual material delivered by the protocols over the wires). To maintain our ability to innovate online, he argues, one must recognize the different relationship public policy has with each layer of the system.

In the meantime, Lessig argues fiercely for preserving an online commons, a concept he distinguishes (but does not completely disentangle) from government control. In the wake of the socialist collapse, he writes, "the issue for us will not be which system of exclusive control--the government or the market--should govern a given resource. The question for us comes before: not whether the market or the state but, for any given resource, whether that resource should be controlled or free."

Lessig, 40, teaches law at Stanford University. He spoke with Associate Editor Jesse Walker in January.

reason: What do you mean by "the commons"?

Lawrence Lessig: A resource is in the commons as long as access to it is not governed by someone's subjective decision. A free resource--free as in zero price--fits that definition. Even a resource that is not zero-priced could be a commons, so long as the terms on which it is offered are completely neutral.

In our culture, whenever we think about commons, we instantly affix the idea of tragedy. But logically, that can only be true if there is some rivalrousness about that property--if my use of it interferes with your ability to use it the same way. Obviously, intellectual goods are not like that. My use of my poems doesn't stop your use of my poems. So if a commons is nonrivalrous, there can be no tragedy, because my consumption of it does not reduce the amount available to you.

That doesn't mean we don't have to worry about regulating access to those resources. The question is, How do you create enough incentive to produce that resource if everybody can take it without paying for it? That's where excludability becomes important. Once I give a bit of information to the world, it's hard for me to exclude anybody from getting access to that information.

Intellectual property deals with the problem of non-excludability by saying, We're going to give a government-backed monopoly right for a limited term to assure there is enough incentive for people to produce. But it shouldn't be expanded so broadly as to create a false protection for rivalrousness.

reason: Another central concept in The Future of Ideas is the end-to-end principle.

Lessig: End-to-end is a design principle that network architects began to articulate around the early 1980s. The idea is that you should place intelligence at the edge of a network and keep the network itself simple.

This made the evolution of the network much more flexible, because it requires a minimum amount of coordination among network owners and users. The way I am trying to develop the concept, it also has very important political consequences: The end-to-end principle enables maximum liberty for users.

As with any principle, this isn't absolute. But if you have two solutions and one is compliant with end-to-end and the other is not, that's a good reason to pick the first.

reason: You believe we're moving away from this principle now.

Lessig: In my first book I was quite pessimistic. It turns out I was not pessimistic enough.

The thing I'm most worried about is what happens as the network moves from an essentially common carriage-regulated medium to pipes that are unregulated and increasingly encouraged to discriminate for or against the content they serve.

That's a prediction of a negative consequence that will come about, and the way to test it is to see what things will resist it. One thing...