The Accidental Activist

March 20, 2001 |

Your first thought is, "Can this be the scourge of Microsoft?" Lawrence Lessig lopes into the Stanford Law School cafeteria wearing a shirt-and-sweater ensemble straight out of the J. Crew catalog, circa 1994, and wire-rim eyeglasses that give him an air of debate-club geekiness. Clean-shaven, lanky, and younger-looking than his 39 years, he hardly seems mature enough to be a tenured professor of law, to say nothing of inspiring such intense emotions among Redmond's battle-hardened zillionaires. And what kind of New Economy power player orders a thin-sliced turkey sandwich on whole wheat, for goodness' sake?

There are corporate corridors, however, where the mention of Lessig's name is enough to cause a row. In op-ed articles, legal briefs, and a growing number of public appearances, he has set forth a view of the networked universe that is abhorrent not only to Bill Gates, but to any number of other magnates and executives in the converging worlds of big technology and big media.

Lessig regards himself, proudly, as a scholar and teacher. Yet in the last several years, he has been deeply involved in a series of the Internet's hottest imbroglios. His advice in the Microsoft antitrust suit guided Judge Thomas Penfield Jackson toward his landmark ruling against the software titan. A believer in file-sharing technology, Lessig wrote a brief that helped prevent Napster's summary shutdown. And he has been a virtual one-man crusade against the strengthening of intellectual-property laws, most recently by taking up the cause of a crotchety iconoclast named Eric Eldred, who hopes to overturn a 1998 copyright-extension law bearing the name of its sponsor, the late Rep. Sonny Bono.

Lessig may be a champion of personal freedom, but he is no friend to the Ayn Rand enthusiasts who see all regulation as a threat to the purity of the Internet. "Governments of the Industrial World, you weary giants of flesh and steel," the musician-turned-theorist John Perry Barlow wrote in a manifesto published online in 1996, "I come from Cyberspace, the new home of the Mind....You are not welcome among us. You have no sovereignty where we gather." Only by keeping the Internet free from government interference, these pundits hold, can cyberspace reach its full utopian potential.

Hogwash, counters Lessig. He maintains that a far more insidious force has already compromised the Internet's democratic ideals. As the libertarians have stood idly by, he says, corporate behemoths have quietly molded cyberspace to the end of more efficient commerce. The Internet, in other words, is already heavily regulated, albeit by the private sector. It has been shaped not by edicts, but by code-the bits and bytes that form the wired world's digitized backbone. The way Lessig sees it, a handful of companies are transforming cyberspace into a marketer's paradise, to the detriment of all forms of communication that lack obvious revenue-generating potential. Lessig elegantly summarizes this pessimistic paradigm in a catchy three-word slogan: "Code is law."

p>Laid out in detail in his 1999 book, Code and Other Laws of Cyberspace, the concept has countless analogies in meatspace. Take Baron Georges Haussmann's overhaul of 19th-century Paris, which replaced crooked medieval streets with broad avenues as a means of frustrating barricade-prone revolutionaries. Or Robert Moses' construction of low-slung highway bridges along the roads to Long Island's beaches, the better to enforce racial segregation. His design choice ensured that only car drivers (primarily whites at the time) could pass, while beachgoers traveling by bus (primarily African Americans) were shunted elsewhere.

Online behavior, too, is regulated by architecture, Lessig argues. The control is subtle but omnipresent. Say you visit your favorite sports Website and wish to download an audio clip of linebacker Ray Lewis discussing the Super Bowl. When you double-click on the link, a dialog box pops up, notifying you that you'll need to download RealPlayer. You're instantly whisked away to Real.com, bombarded with sales pitches, and asked to join a mailing list. Once you download the application, you're implored to make it your default media player and reminded frequently about updates. Your experience has been altered by a few pieces of craftily placed code.

Suppose you're an America Online subscriber who's upset about the subscription price or the looming impact of the Time Warner merger. You'd like to talk it over with other AOL patrons and maybe put together a petition demanding quicker downloads. But you find that AOL's chat rooms are limited to 23 visitors-scarcely enough to foment a consumer uprising. The revolution has been foiled by code. \

Like the cyberlibertarians, Lessig puts a high value on the end-to-end (E-to-E) principle and the vision of a network without middlemen empowered to complicate-and slow-its development. In an E-to-E world, any user can tack on a new application or piece of content, since there is no central arbiter to satisfy. In Lessig's view, that ideal is being eroded by communications mega-mergers like the AT&T-MediaOne deal. AT&T, he points out, has suggested that future broadband customers could be limited to Internet service providers enjoying the company's seal of approval. Despite the concerns raised by Lessig and Mark Lemley, director of the Center for Law and Technology at the University of California at Berkeley, AT&T continues to resist opening its pipes to most outside ISPs.

The AOL-Time Warner marriage raised similar questions for Lessig: Will AOL users be subtly directed toward Time Warner content? Will Time Warner cable subscribers be forced to sign up with AOL? Lessig's advocacy of "open access" has been cited as a factor in the FCC's January decision ordering the newly created conglomerate to let rival Internet companies use its high-speed networks.

Another behavior-controlling target of Lessig's is the idea of content-filtering software and, in particular, the platform for Internet content selection (PICS). He foresees a future in which filters are deployed to keep people away from certain taboo regions of the Internet. "If there's a filtering technology developed that can be 99 percent effective, the first person that's going to buy it is Yahoo!, so French citizens cannot buy things on Yahoo! that French citizens are not supposed to buy," says Lessig, punctuating his dystopian examples with gentle, two-handed karate chops on a table in his cave-like Stanford office. "When the French buy it, then the Germans are going to buy it because the Germans want to subvert Nazism. When the Germans buy it, the Singaporeans are going to buy it because they want to limit people from getting access to stuff that's anti-Singapore....These technologies that zone cyberspace on the basis of your location will flourish in the next 10 years."

Lessig's politics were not always so anti-establishment. His father, Jack, once made his living in perhaps the ultimate Cold War industry: building missile silos in South Dakota. When Lawrence was 5, the family moved to Williamsport, Pa., where his father founded a steel-fabricating business. Lessig spent his high school years as an arch-conservative, traveling from auditorium to auditorium "trying to proselytize people into the right." As a 19-year-old University of Pennsylvania sophomore, he was a member of the delegation to the 1980 GOP convention. That fall, he managed a state Senate campaign in Erie; Tom Ridge, Pennsylvania's current Republican governor, was a close pal.

But there was no room on Ronald Reagan's coattails for Lessig's candidate, a turn-of-fortune he now considers a blessing. "It was the greatest thing to ever happen to me," he jokes. "I was so lucky to have lost that campaign. I often think about who I would have been had [the candidate] won. I would have gone off to be some kind of political operative somewhere." Instead, Lessig entered a life-altering funk. Moving away from Penn's business curriculum and the professional path favored by his father, he became fascinated with economic theory and philosophy. Upon graduating, he shipped off to the University of Cambridge to study the work of Ludwig Wittgenstein.

It was in England that Lessig experienced a profound political conversion. After three years of analyzing modern political philosophy, he concluded that conservatives tended to put a higher value on "certain kinds of rights [such as] the right to property" than on "other kinds of rights [such as] rights of speech." He toyed with the idea of becoming a philosophy professor, but turned to the law as "an opportunity to do something that was more pragmatic." After his graduation from Yale Law School in 1989, Lessig clerked for two of the country's most heralded conservative jurists: the 7th U.S. Circuit Court of Appeals' Richard Posner and the Supreme Court's Antonin Scalia. He was the token liberal in both chambers, assigned to argue the contrarian viewpoint and serve as a whipping boy of sorts.

From his clerkships, Lessig moved on to a plum teaching post at the University of Chicago. His early academic obsession was translation theory-how to interpret the Constitution in situations unimagined by the founding fathers. He also traveled extensively in Eastern Europe, helping Georgia craft its post-Cold War legal framework.

As a lifelong geek, however, Lessig remained intrigued by technology. He first dialed into a Xerox mainframe as a high-school sophomore, and he boasts of having owned one of IBM's original PCs. At Penn, he wrote an accounting program to manage his fraternity's books. And as a Supreme Court clerk, Lessig was instrumental in convincing the techno-ignorant justices to discard their antiquated Atex computer system. He accomplished this with a simple demonstration before an audience composed of Scalia, Sandra Day O'Connor, and David Souter. Lessig brought in his PC from home and set it up next to an Atex terminal. "If you want to look up a word in the thesaurus on Atex, here's how you do it," he said, striding over to a shelf and fetching a fat volume. "If you want to do it on the PC, here's what you do." When he hit the thesaurus button, "Scalia went wild-he said 'Oh my God, oh my God, we've got to get this!'"

Lessig's tech savvy helped him patch together a pioneering cyberlaw seminar as a visiting professor at Yale in 1995. Teaching that class, he says, brought the code-as-law idea to consciousness. But he was still a typically anonymous academic when a letter from Judge Jackson arrived in late 1997. Jackson, embroiled in the early stages of the Microsoft fracas, wanted to appoint Lessig as the case's "special master," a post that would empower him to hold evidentiary hearings and advise the court.

Microsoft's attorneys went bonkers. Though Lessig's writings on cyberlaw at that point were limited, he had already gained a reputation as an advocate of unfettered consumer choice. Hoping to scuttle the appointment, the company focused on a string of emails Lessig had sent to Peter Harter, a Netscape Communications lawyer, playfully disparaging Microsoft's Internet Explorer. "Sold my soul, and nothing happened," he wrote after a troubled attempt to install the Web browser on his Macintosh.

Seeking to have Lessig disqualified, Microsoft seized on the emails as a "smoking-gun proof of bias." The company's attorneys even claimed that Lessig was equating Microsoft with the devil. He was, indeed, booted off the case, though strictly on procedural grounds-an appellate court ruled against the use of the special-master statute.

"That was an extraordinarily awful part of my life," says Lessig, who weathered the daily attacks on his objectivity with a steady stream of "no comments." But his suffering was not in vain. "I always tell Larry that I thought he got the best of both worlds," says his friend David Post, a law professor at Temple University. "He got all the buzz from being named special master in the Microsoft case, but he didn't have to do any of the work." The controversy, Post adds, established Lessig as "the dean of cyberlaw, and it recognized that there is such a thing as cyberlaw."

As a quasi-martyr, the instant darling of Internet policy wonks, Lessig was in a perfect position to publish his first book. A year-and-a-half later, Code was released to a flurry of attention. Naysayers such as Washington bureau chief Declan McCullagh of Wired News, a longtime Lessig adversary, chided his anticorporate rhetoric as quaint. "He's taken over sort of the '70s Democratic ideology that big is bad," McCullagh says. "It's very tired in a way." McCullagh, who had been immortalized by the cheeky title of Code's last chapter-"What Declan Doesn't Get"-describes Lessig as "a very smart fellow who hangs out with other very smart fellows who think the world would be a better place if they were running things."

But admiration was the more common response, and Code became a staple for business-class travelers on the Silicon-Valley-to-Alley route. "For the foreseeable future, Lessig's book will be the starting point for all discussions of Internet governance," one reviewer gushed. Conferences clamored for his lectures, magazines begged for articles, congressional committees solicited his testimony, and litigants appealed to him for supportive briefs.

Lessig, who had expected the discussion of his ideas to be confined to the usual academic circles, was overwhelmed. Fate, he concluded, had handed him an irresistible opportunity to educate the masses about the corruption of cyberspace. Last year, Lessig flew more than 180,000 miles, delivering speeches titled "e2e Regulation" or "The Open Source Revolution" to audiences eager for a viewpoint from outside the dot-com establishment. "The whole system is generated and funded by special interests that have their own little spokesmen that say what they want them to say," Lessig groans. "That's what happened in the Microsoft case-it was almost impossible to find really good law professors who did antitrust who weren't hired by one side or the other."

In his speeches, and in witty commentaries for the Wall Street Journal, the Washington Post, and the Industry Standard, Lessig makes a case for what he terms mild government oversight as a means of checking the anticonsumer excesses of industry. He wants Congress, for instance, to curtail the patenting of business methods such as Amazon.com's "one-click shopping," which he deems injurious to grass-roots innovation. He urges the FCC to stop broadband providers from designing networks that limit surfers' navigation options.

Yet up to now, Lessig insists, the nation's legislators have been more inclined to play Corporate America's lapdog. Despite their hands-off rhetoric, he says, the Feds have enacted a series of little-noticed regulations favoring big commercial interests. Let's say you're a Linux user with a freshly purchased DVD copy of the film A Clockwork Orange. You pop it into your PC, waiting to catch up on the adventures of Malcolm McDowell and his droogs. But there's a rude surprise awaiting you-the disc, like all DVDs, is encrypted to prevent playback on the open-source platform. And if you resort to a de-encryption program, you are committing a felony-at least according to the Digital Millennium Copyright Act of 1998, which criminalized the circumvention of copyright protections, even for purposes that are not in themselves illegal.

Lessig is similarly repulsed by Congress' readiness to extend the length of copyright, which has been one of Hollywood's pet projects. Such extensions are defended as boons to creativity-the rationale for copyright enshrined in the Constitution. But the result, Lessig argues, is to discourage the generation of ideas and artistic works drawing on "resources held in common," which he regards as an "extraordinarily important feature of our tradition." With his vociferous opposition, Lessig has earned the special enmity of Jack Valenti, president of the Motion Picture Association of America. In one of his many appearances before Congress, Valenti advocated a copyright term of "forever, less a day." When the two squared off at a Harvard-sponsored debate last October, sparks flew. "One thing that we know about incentives is that you can't incent a dead person-no matter what we do, [Nathaniel] Hawthorne is not going to produce anything else," notes Lessig, whose calm demeanor cracks slightly when he launches into a copyright screed. "So the idea of retrospective extension is just completely inconsistent with the notion that the only reason you're granting copyright protection is to create an incentive to produce."

Such heated intellectual skirmishes have yet to wear down Lessig. A romantic fool at heart, with the youthful good looks and feverish energy of an undergraduate, his life choices have tended to center on women. A girlfriend pursuing a Yale degree coaxed him from Chicago to New Haven, Conn., in 1987, and last year's move from Harvard to Stanford was at the behest of his wife, the German human-rights lawyer Bettina Neuefeind, who prefers the West Coast lifestyle. Lessig possesses a down-to-earth aura rare among the ivory tower's haughty denizens, though he still seems perfectly suited to the stereotypical professor's milieu-reclining in a red-leather chair, clad in a tweed jacket, calmly discussing big ideas over a snifter of port. This self-described workaholic's one recreation is travel, though not of the seven-days-in-the-Caribbean sort. His on-the-road experiences include an interrogation in Soviet-era Ukraine (local police mistook him for a nationalist agitator) and a successful effort to smuggle a heart valve to a Russian refusenik in 1985.

At Stanford, Lessig sits in the belly of the dot-com beast, amid kiddie entrepreneurs who, setting their early hacker attitudes aside, devote long hours to seeking the ecommerce jackpot. It's a strange environment for an avowed fan of "East Coast code"-Lessig's nickname for government regulation. But Lessig takes subtle pleasure in his role as a thorn in Silicon Valley's side. A pleasant grin flashes across his face when he recalls a rich offer from the Bell companies to discuss open access with the U.S. Department of Justice, Federal Trade Commission, and Federal Communications Commission. He turned them down.

The good humor seems out of step with Lessig's deep pessimism. Code is a thoroughly troubling text that concludes with an indisputably morbid admission: "I've spoken as if there could be hope. But Hope, it turns out, was just a television commercial." The dark outlook stems from a core inconsistency in his vision. While government has a critically important role to play, it "does a terrible job at playing that role....We're in the worst possible time to have to rely on our government to do the right thing. Government has been captured."

But Lessig discounts his own positive impact on the evolution of cyberspace. Despite his avowed liberalism, Beltway big wheels from across the political spectrum seem to trust Lessig's insight. Justice O'Connor, a Reagan appointee, cited his work in overturning the Communications Decency Act in 1997. The federal antipornography measure would have severely curtailed online speech, forcing content providers to guarantee that their "indecent" products would not reach minors. In declaring the act unconstitutional, O'Connor referred to an early Lessig article defending the extension of First Amendment protections to cyberspace.

Lessig has used a similar argument on behalf of Napster. In a supportive brief written during the company's life-or-death struggle with A&M, he emphasized the legitimate applications-actual and potential-of the peer-to-peer idea. "We should not be in a position of shutting down a technology," he says, "merely because one application is going to violate the copyright law."

Though he never had a chance to flex his special-master muscle in the Microsoft brouhaha, Lessig was nonetheless vital to the government's victory. At Jackson's behest, he filed an important 45-page amicus curiae brief in February 2000. (Microsoft objected to Jackson's solicitation of advice; playing off the lawyers' earlier reference to Satanism, the judge replied that he could consider Lessig's counsel "without being affected by any occult bias of which he might be possessed.") The brief was intended to aid Jackson in crafting a pro-government decision that could withstand the appeals process. Lessig tacitly advised Jackson to refrain from ruling that Microsoft's combined browser-operating system package provided no benefit to consumers-a conclusion he considered likely to be overturned by a higher court.

Ironically, Lessig's influence could ultimately help save the software conglomerate that tried so hard to ruin his reputation. He opposes a Microsoft breakup as "illogical," preferring a hefty fine and a series of conduct remedies. One possible panacea he suggests is forcing Microsoft to make public its application programming interfaces (APIs), the software "hooks" that permit programs to run on Windows. The open-sourcing of those APIs would enable outside competitors to port their programs to Windows, thus chipping away at Microsoft's monopoly.

Sifting through the minutiae of antitrust remedies is not Lessig's favorite pastime. At the moment, his energies are focused on the case of Eric Eldred, an East Derry, N.H., man who publishes electronic books on the Web. Incensed by Congress' extension of the copyright term to 95 years-81 years longer than the term set by the founding fathers-Eldred was ready to commit an act of civil disobedience. He had resolved to publish texts that, if not for the extension, would be in the public domain. "I offered to go to jail if necessary," Eldred says. But Lessig "told me that it wasn't necessary. He's a lawyer, so I took his advice."

"You're not a rich guy-they'll kill you," was Lessig's counsel. "Let's do it the other way and bring an action challenging the statute." The resulting case, Eldred v. Reno, is awaiting a decision from the Circuit Court of Appeals in Washington, D.C. Though Lessig expects the issue to wind up in the Supreme Court, he's cautiously optimistic about the lower-court result. The appellate judges questioned him for a full hour in October, rather than the allotted 15 minutes-a positive sign, he suspects. An eventual victory would invalidate the 1998 extension, and presumably overturn a previous 1976 extension as well. If both extensions are successfully voided, all works created before 1943 would automatically enter the public domain-a crushing blow to Valenti and his Herculean efforts to protect Hollywood's intellectual property.

Eldred may be Lessig's last hurrah on the activist trail. Though his forthcoming book, tentatively titled Innovation and Its Enemies, focuses on the idea of cyberspace as an intellectual commons, the next one will be a constitutional law treatise, Fidelity in Translation-not a title easy to imagine on The New York Times best-seller list. He plans to slowly disappear from the public eye and concentrate on teaching and academic writing. He looks forward to the day when "I can go back to being someone whose phone never rings."

But Lessig has molded a clique of acolytes to take his place. His former students are already assuming prominent roles at universities and think tanks, spreading the gospel of cyberspace as an intellectual commons besieged by big business. The nascent Lessigites include Andrew Shapiro, author of The Control Revolution, who teaches at Yale, and Alan Davidson, staff counsel for The Center for Democracy and Technology.

Inspired by Lessig's principles, several of his disciples are crafting business ventures that respect cyberspace's utopian potential. Shapiro, for one, has launched an environmentally-conscious supply company called GreenOrder.com, while former student Jordan Greenhall is CEO of Project Mayo, a company that plans to peddle an underground video technology. Thanks to Lessig's tutoring, Greenhall says he has had the confidence and clarity of vision to "seize opportunities that other people might not recognize."

Aside from training a new generation of code-conscious policymakers, Lessig hopes for a modest legacy-a recognition among rank-and-file Internet users that cyberspace's idealistic potential should not be usurped by corporate interests. "When this is all over," he says, "I hope it's obvious to people why Disney should not control Mickey Mouse for all the rest of eternity."

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