Lawrence Lessig: Thank you very much. It's extremely cool to be here.
It's just about as cool as when I spoke at Pixar.
I think of these two as being highlights of my career (check).
So, thank you very much for having me.
I have two small ideas I want to use as an introduction to an argument,
about the nature of access to scientific knowledge in the context of the internet,
and use that argument as a step towards a plea about what we should do.
So here is the first idea.
I want to call it the "White-effect".
And I name that after Justice Byron White, justice of the US Supreme Court,
appointed by John F. Kennedy - here he is in 1962
- famous before that as 'Whizzer' White on the Yale University football team
When he was appointed to the Supreme Court, he was a famous liberal,
renowned liberal, the only appointee that John Kennedy had to the Supreme Court.
But 'Whizzer' White grew old, and he is probably most famous for an infamous opinion,
which he penned on behalf of the Supreme Court, Bowers v. Hardwick,
an opinion where the Supreme Court upheld the Criminalization of Sodomy law.
Here is the passage: 'Against this background, to claim that a right to engage
in such conduct' - homosexual sodomy - 'is "deeply rooted in this Nation's history and tradition"
or "implicit in the concept of ordered liberty" is, at best, facetious.'
Now, this is what I want to think of as the "White Effect".
To be a liberal or a progressive is always relative to a moment, and that moment changes,
and too many are liberal or progressive no more.
So, that's the "White effect". Here is the second idea.
The Harvard Gazette is a kind of propaganda publication of Harvard University,
it talks about all the happy things at Harvard.
So here's an article that it wrote, about an extraordinary macro-economist,
Gita Gopinath, who has just come to Harvard, received tenure last year
and is one of the most influential macroeconomists in the United States right now.
This article talks about her work and her research, and at the very end,
there is this puzzling passage, where it says:
'Still, the shelves in her new office are nearly bare, since, said Gopinath,
"Everything I need is on the Internet now." '
Right, that's the second idea. Here is the argument.
So, copyright is a regulation by the State intended to change
a regulation by the market. It's an exclusive right, a monopoly right,
a property right granted by the State, which is necessary
to solve an inevitable market failure.
Now, by saying that it's necessary to solve an inevitable market failure,
I'm marking myself as a pro-copyright scholar,
in the sense that I believe copyright is necessary, even in a digital age.
Especially in a digital age, copyright is necessary to achieve
certain incentives that otherwise would be lost.
But in the internet age, what we've seen as a fight about copyright,
about the scope of copyright, waged most consistently in the context
of the battle over artists' rights, in particular, in the context of music,
where massive 'sharing' - sharing which is technically illegal - has lead to a fight
fought by artists and especially by artists' representatives.
And we from the Free Culture movement, have challenged the people
who have been waging that fight.
And they defend copyright in the context of that fight.
But if we get above the din of this battle, the important thing to keep in mind
is that both sides in this fight acknowledge that copyright is essential
for certain creative work,
and we need to respect copyright for that creative work.
We, from the Free Culture movement, need to respect copyright for that work,
we need to recognize that there is a place for sensible copyright policy
to protect and encourage that work.
But, however - and here is the important distinction -
Not only artists rely upon copyright, copyright is also relied upon by publishers,
and publishers are a different animal.
We don't have to be as negative as John Milton was when he wrote publishers are
"Old patentees and monopolizers in the trade of books
- men who do no labor in an honest profession, to [them], learning is indebted."
We don't have to go quite that far to recognize why publishers are different,
that the economic problem for publishers is different
from the economic problems presented by creating.
So who is copyright for? The publishers or the artists?
Well, since the beginning of copyright in the Anglo-American tradition,
the Statute of Anne of 1710, there has been this argument about whether copyright
was intended for the publishers or the artists.
When the Statute of Anne was originally introduced, it gave a perpetual term of copyright,
which the publishers understood to be a protection for them.
It was then amended to give just a limited term for copyright.
Publishers were puzzled about that, because it wouldn't make sense to give a limited term
if it was the publisher that was to be protected.
In 1769, a court case in the context of Millar v. Taylor seemd to suggest that
despite the limitation of the Statute of Anne, copyright was for ever.
But in 1774, in a very famous case about this book, The Seasons, by James Thomson,
the House of Lords have held that copyright protected by the Status of Anne was limited,
holding for the first time that works passed into the public domain.
And for the first time in English history, works including Shakespeare
passed into the public domain. And in this moment, we can say Free Culture was born.
And it also clarified that copyright was not intended for the publisher.
Even if it benefited the publishers, it was a creative right
and author's right. Even if benefitting publishers, copyright was for authors.
So, I remark these obvious borders about the scope of copyright,
because we tend to forget them. We've been fighting a battle in the context of copyright
where copyright is essential, and we are spending too little attention
about a battle in a context where copyright is not essential.
And I mean by that, in the context of science, in the context that Gopinath was speaking of
when she talked about everything being available on the internet.
And the consequence of failing to pay attention to this second context
within which this battle is being waged is that there is a trouble here
that too few see.
So let's think about this claim that everything is on the internet now.
What does that mean?
Here is a particular example to evaluate what that means.
Much of my work, these days, is focusing on corruption
in the context of this institution, Congress.
So let's say that we wanted to study, you wanted to study with me,
corruption in this context. Go to Google Scholar and enter a search for campaign finance.
Here are the top articles that would be listed from that search.
So let's say you wanted to browse through these articles
and get a sense of campaign finance and how it might be related to corruption in Congress.
So here are the top 10 articles. This first one, a very famous one
by my former colleagues Pam Karlan and Sam Issacharof.
You would find, to get access to this article, you'd have to pay $29.95.
The second article, housed at JSTOR, you'd have to get through to get permission
from the Columbia Law Review - not quite clear how you would do that.
Third article, again, $29.95. The fourth article, protected by Questia,
we learn that you can get a 1-day free trial to all these Oxford University Press articles,
you'd only have to pay when that day is over 99 dollars
to continue for a year.
Here is the 4th article again, protected by JSTOR.
The 5th article, it's an economics article, so the price is right on the surface:
10 dollars to purchase access to this article.
Here's the 7th article, Columbia Law Review.
8th article, Columbia Law Review, 9th article, protected again by JSTOR,
10th article, $29.95. So, how accessible is this information to the general public?
Well, one of these you can get access to for free, at least one time only,
One of them you can pay $10 for. 3 of them, $29.95, and 5 of them, terms unknown,
protected by JSTOR.
So, when Gopinath says "Everything I need is on the internet",
what does she mean? What she means is if - and this is a big if -
you're a tenured professor in an elite university or we could say a professor,
or a student or professor in an elite university, or maybe
a student or professor at a US university, if you are a member of the knowledge elite,
then you have effectively free access to all of this information.
But if you are from the rest of the world? Not so much.
Now, the thing to recognize is we built this world,
we built this architecture for access that flows from the deployment of copyright,
but here, copyright to benefit publishers. Not to enable authors.
Not one of these authors gets money from copyright.
Not one of them wants the distribution of their articles limited.
Not one of them has a business model that turns upon restricting access to their work.
Not one of them should support this system.
As a knowledge policy for the creators of this knowledge, this is crazy.
And the craziness doesn't stop here.
So, my third child is this extraordinarily beautiful girl, Samantha Tess.
When she was born, the doctors were worried she had a condition
that would suggest jaundice. I had jaundice as a baby, so I didn't think it was serious,
and I was told very forcefully by her doctor, this is extroardinarily serious.
If this condition manifest in the dangerous condition, it would produce brain damage,
possibly death.
So, of course, we were terrified. I went home and I did what every academic did,
I pulled everything I could from the web to study about what jaundice was
and what the conditions were. Now, because I am a Harvard professor,
of course, I didn't have to pay to get access to this information, but I just kept the total.
To get access to these 20 articles that I wanted access to was $435,
for the ordinary human, not a Harvard professor. OK.
So I gathered these articles and set them aside, believing this problem
would not manifest itself in such a serious way.
But on her third day, she fell into a stupor, and we called the doctor,
and the doctor was panciked and he said we had to get to the hospital immediately.
So, at 3 o'clock in the morning, we trundled the baby up and raced to the hospital.
We were sitting in the waiting room, and I brought the articles with me,
because I wanted something to do, to distract me from the terror
that my child had this condition.
And I picked up the first of these articles, which is actually free,
published on the web for free, at the American Family Physician,
and I started reading about this condition.
And I got to this table, a table that was going to describe
when you should worry about whether the child would have too severe of this exposure.
I turned the page, and this is what I found:
"The rightsholder did not grant rights to reproduce this item in electronic media.
For the missing item, see the original print version of this publication."
And I had this moment of liberation from fear about my child,
because I turned to fear about our culture. I thought, this is outrageous!
The idea that we are regulating access down to the chart in an article
that was published for free to help, not doctors, but parents
understand what this condition was.
We are regulating access to parts of articles.
Now here and throughout our architecture for access,
we are building an infrastructure for this regulation.
Think of the Google Books project, which is perfecting control down to the sentence,
the ability to regulate access down to the sentence.
By the way, I alway forget to tell this: the kid is fine, she didn't have jaundice,
it is a complete non issue.
But the point is, we are archintecting access here, for what purpose?
To maximize revenue. And why? Revenue to the authors?
Revenues necessary to produce the incentive to create?
Is this a limitation that serves any of the real objectives of copyright? (14:00)