Lawrence Lessig on Intellectual Property - Dictionary of Arguments
Intellectual Property/Lessig: Many believe that intellectual property cannot be protected
in cyberspace.[…] but we will soon see that this thought must be wrong.
The Digital Millennium Copyright Act in 1998 (DMCA) .[…] implemented directly the recommendation that “technological protectionmeasures” be protected by law.Code that someone implements to control either access to or use of a copyrighted work got
special legal protection under the DMCA: Circumvention of that code, subject to a few important exceptions, constituted a violation of the law. […]something fundamental has changed: the role that code plays in the protection of intellectual property. Code can, and increasingly will, displace law as the primary defense of intellectual property in cyberspace. Private fences, not public law.
We are not entering a time when copyright is more threatened than it is in real space. We are instead entering a time when copyright is more effectively protected than at any time since Gutenberg. The power to regulate access to and use of copyrightedmaterial is about
to be perfected. […] But the lesson in the future will be that copyright is protected far too well. The problem will center not on copy-right but on copy-duty—the duty of owners of protected property to make that property accessible.
With ordinary property, the law must both create an incentive to produce and protect the right of possession; with intellectual property, the law need only create the incentive to produce.
This is the difference between these two very different kinds of property, and this difference fundamentally affects the nature of intellectual property law.
A classic example of these limits and of this public use dimension is the right of “fair use.” Fair use is the right to use copyrighted material, regardless of the wishes of the owner of that material. A copyright gives the owner certain rights; fair use is a limitation on those rights. It gives you the right to criticize this book, cut sections from it, and reproduce them in an article
attacking me. In these ways and in others, you have the right to use this book independent of how I say it should be used.
So copyright law strikes a balance between control and access. What about
that balance when code is the law? (See Code/Lessig).
The rise of contracts qualifying copyright law and the rise of code qualifying copyright law raise a question that the law of copyright has not had to answer before.We have never had to choose whether authors should be permitted perfectly to control the use of their intellectual property independent of the law, for such control was not possible. The balance struck by the law was the best that authors could get. But now, code gives authors a better deal. The question for legal policy is whether this better deal makes public sense.
Julie Cohen: Thesis: copyrightmanagement schemesmust protect a right to read anonymously— that if they monitor, they must be constructed so that they preserve
anonymity. - Lessig: Cohen identifies a value yielded by an old architecture but now threatened by a new architecture, and then argues in favor of an affirmative right to protect the original value. […]as our tradition has never had this technical capacity before, it is hard to say a choice was made about it in the past.
the conclusion we drew about fair use—that when the cost of control was high, the space for fair use was great […] When costs of control fall, however, liberty is threatened._____________Explanation of symbols: Roman numerals indicate the source, arabic numerals indicate the page number. The corresponding books are indicated on the right hand side. ((s)…): Comment by the sender of the contribution. Translations: Dictionary of Arguments The note [Author1]Vs[Author2] or [Author]Vs[term] is an addition from the Dictionary of Arguments. If a German edition is specified, the page numbers refer to this edition.
Code: Version 2.0 New York 2006ff