Who's Controlling Cyberspace?

i>In a darkly pessimistic new book, Harvard University law professor Lawrence Lessig argues that the Internet is morphing from a libertarian's utopia to a place stifled and controlled by commercial interests. In Code and Other Laws of Cyberspace, Lessig says companies that were once "bastions of unregulability" are now producers of technologies that facilitate regulation of cyberspace.
Lessig, an expert in cyberlaw, served last year as a special master in the Microsoft Corp. antitrust case and has been asked to advise the court on it this year. In response to a request from the judge presiding over the Microsoft trial, Lessig last week filed a brief saying that Microsoft's bundling of Windows with Internet Explorer was illegal because it was unfairly competitive. He says that although the outcome may be irrelevant for Microsoft, it has important implications for how the industry behaves in the future. He spoke recently with Computerworld's Gary H. Anthes.
You say that regulation in areas such as privacy, intellectual property and free speech is effectively shifting from lawmakers to software writers. But doesn't a free market usually make optimum decisions for society as a whole? I don't think you can say that the incentives of companies will always align with the incentives of society. For example, companies get data about individuals for free by virtue of the architecture of the Web. If you believe this resource shouldn't be given for free, or if you believe individuals should have better control over it, then you could imagine a role for somebody -- the state, say -- to facilitate architectures that give individuals greater choice.
You worry that independent bodies such as the Internet Engineering Task Force (IETF) are also losing power to the corporate code writers. What's wrong with that? Last year the FBI came to the IETF and asked them to modify the protocols of the Net to . . . make it easier for the FBI to monitor traffic. The IETF, being a very independent group, basically told the FBI to go to hell. There is relatively little the FBI could do to get them to come along.
But couldn't legislation compel the IETF to comply with such requests? Legislation is only as effective as enforcement mechanisms. It's easy to get Microsoft or AT&T to obey the law because if they don't, you can seize their assets. But the IETF is just this group of individuals -- basically, whoever shows up at meetings -- and it's not clear whose assets you'd seize.
You seem greatly troubled by trends in intellectual property rights. Patents, particularly, will have a significantly detrimental effect on innovation in cyberspace. There were no patents on business methods until 1998. You didn't have to get a lawyer to negotiate the rights to use technology, and that's why so many types of people could play the (e-commerce) game.
Will Congress rein in these kinds of patents? I hope so. We need to resolve this very quickly, because there will soon be a whole slew of patents claiming the space of e-commerce. Then, anyone engaging in e-commerce will be forced into this licensing game before they can turn on their Web site. That's an extraordinarily high cost.
You say software copyright laws are badly flawed. How? Copyright law was originally drafted to create incentives for creators of intellectual property while ensuring that a certain amount of it gets turned over to the public. The objective is to sustain access, fair use and limitations on intellectual property rights. That perspective is completely alien to Washington today. Washington's view is: The more we protect intellectual property, the better.
You argue that the year 2000 problem stemmed, at least in part, from a lack of government regulation. How might regulation have helped? The question is whether some kind of contract law or tort law might have created the incentive for people to deal with the problem much sooner. We could have minimized the cost of this problem through a law that made it clear that companies would be liable if they produced software (with Y2K flaws). It's too easy to waive liability in software contracts.
Is our antitrust system agile enough for the fast-paced IT world? Antitrust law is agile enough . . . to protect consumers. But enforcement mechanisms are extremely expensive and cumbersome. If Microsoft prevails in the present trial, there will be a good argument that this was an extraordinary burden to place on one company for basically six of the past 10 years. But if they lose, there will be a claim that, "Why did it have to take us six years to resolve it?" We will see the government try to find ways to fast-track the process.
But will the industry have changed so much that the result just doesn't matter? It may be irrelevant with respect to Microsoft. But the reason the government brings these cases (to trial) is not always to deal with a particular party but to establish precedents that will govern behavior in the future. So it could have a positive effect, as long as the perspective is on the rules we are trying to set up for the Information Age generally, as opposed to what are we doing about Microsoft.