I mentioned this talk last week, and I did go to it. Lessig is a fantastic public speaker. Organized and cogent. While watching his talk, I was reminded that I’d read somewhere that if you want to see Powerpoint used appropriately, go to a Lessig talk. And it’s so, so true. He takes what Tufte views as disadvantages and turns them into advantages. You can only fit a few words on a slide? Great! Put up the point you’re making in a one or two word phrase, and leave it there while you expand upon it. It provides the audience focus, but doesn’t lead to you reading the slide. It helps that Lessig’s presentations are idea-centered, not data-centered, so no need for graphs. But anyway…

As far as the talk itself, he didn’t say anything particularly surprising to those of us who have read his books (particularly The Future of Ideas), so go check those out for details. The main idea was drawing a distinction between “rivalrous resources” such as land, that leads to the infamous Tragedy of the Commons, where “Freedom … will bring ruin to all”, and “nonrivalrous resources” such as ideas, as described by the Thomas Jefferson quote at the top of this article. Rivalrous resources are naturally competitive; if you use more, I get to use less. Nonrivalrous resources are not necessarily so; Lessig used language as an example, where the more people use language, the more people benefit. It’s a network effect.

He then went on to discourse about the importance of the commons for ideas, and how we all benefit by having a commons. He identified two types of commons: an innovation commons (as exemplified by the end-to-end nature of the internet (aka a stupid network) and a creative commons (where ideas and images are in the public domain, as opposed to locked up in copyright, due to the ridiculous extension of copyright pushed by Disney) (he pointed out that the default is now to lock up your work – he wasn’t even sure it was possible to declare that your work was in the public domain, even if you wanted it to be).

The last part of the talk was the most interesting to me. He pointed to the rise of Intellectual Property Extremism, where IP becomes a goal in itself. He pointed out that Jefferson and the framers of the Constitution intended IP to be used to promote the public good, by making a sufficient incentive to create. His point was that IP is a means not an end. Or as he put it, “Property is a tool, like a hammer.” There are appropriate and inappropriate uses for it; for a hammer, a nail is appropriate, a butterfly is not. You judge a tool and its appropriateness for a task by its effects, not support it regardless of consequences; otherwise, you fall into the “If you have a hammer, everything looks like a nail” trap.

So Lessig’s question was simple: does IP and current copyright law promote behavior that we want to value? His answer is no. I suspect his new book, Free Culture, available online, makes the argument more convincingly, but the gist of it is that we move forward in innovation and creativity by building off of what came before. So locking up ideas destroys our capacity for innovation. Therefore, if we judge IP and copyright law by the standard of its effects, we have to say it’s a bad idea. There are appropriate uses of copyright law and IP, and Lessig is happy to argue for them. But IP as an unalloyed good is a myth in his eyes.

Couple last vignettes:

• To combat the idea that intellectual property rights were inscribed in the Constitution and must never be touched, he mentioned the case of the Causbys, who were chicken farmers near an air force base. The planes’ landing vector took them straight over the Causbys’ farm, which led to chickens freaking out and running into walls. So the Causbys took the government to court, claiming that their property extended down to the center of the earth, and out to “the periphery of the universe”, and therefore the airplanes were trespassing. Such a definition of land ownership was also around from the writing of the Constitution. The judges dismissed that argument out of hand – “Common sense revolts at the idea.” Lessig suggested that our common sense should revolt at the idea of what is currently being done in the name of IP.
• He commented at one point about how he had a hard time convincing people of the subtleties of his argument, because they had a kneejerk reaction that breaking copyright is stealing, and stealing is bad. I asked him afterwards if he thought this might be a matter of Lakoff-like framing, where the phrase “intellectual property” puts people in a cognitive frame of property, their stuff, which you shouldn’t be able to steal. He says he goes back and forth on the issue – he thinks that for convincing the general public, a new phrase/frame might help, but legalistically, he wants to use the term property, because it’s the correct legal term. Property rights legally include the ability to exclude people from using it, and the alienable right to transfer its ownership. He also points out that real property has similar restrictions as the ones he’s proposing for intellectual property. For instance, if the town builds a sidewalk on your property, you do not have the right to build a fence across the sidewalk to prevent people from walking on it. In fact, if you do, others have the right to break the fence to continue to use the sidewalk as is their right. The analogy to publishing DVD decryption algorithms should be clear. I thought it was interesting; from a legal point of view, I think he’s correct in trying to reclaim the term property and use it properly. But from a public relations point of view, Lakoff points out that “frames trump facts”, and no matter how good an argument you make, people will respond to frames more than to their self-interest. Something to be considered at least. Of course, coming up with a better term than intellectual property is tricky. I’ll mull it over.

Good talk. Go see Lessig if you get the chance. And read his books. Good stuff.