Profit© vs. innovation©

A Web legal scholar warns of the social costs of patents and monopolies

Sandwiched between daytime television ads for personal injury lawyers and psychic friends is an appeal to inventors: a 1-800 number to call for advice on patenting an idea and, presumably, getting rich. But if some feckless soap-opera fan dreams up a breakthrough idea and patents it, will society be better off?

That is the sort of question that troubles Lawrence Lessig in his new book, "The Future of Ideas."

Lessig, a law professor at Stanford University, is easily the most recognizable name in Internet law. A fierce opponent of government regulation or monopoly business that would check scientific progress, Lessig is a strong believer in the idea that technology ought to serve some collective good.

In "The Future of Ideas," Lessig pushes a platform that is part futurist libertarian, part old-school liberal. Some legal protection of intellectual property is a good thing, he argues. In moderation, it allows innovators to profit from their ideas, which in turn stimulates more innovation. But, he claims, too much ownership in the world of ideas accomplishes the opposite: It squelches innovation.

Lessig compares the evolution of the telephone system to the evolution of the Internet. AT&T first wired the United States, so AT&T had a monopoly over telecommunications. In 1956, when an independent firm tried to sell a device called the Hush-a-Phone - a plastic mouthpiece for phones that supposedly blocked background noise - the courts put them out of business for selling a "foreign attachment" to AT&T's network.

Later, and more dramatically, when an independent researcher proposed the idea of a fledgling Internet, AT&T refused to cooperate - even when the US Defense Department offered to pay for everything. "It can't possibly work," an AT&T executive said, "and if it did, damned if we are going to allow the creation of a competitor to ourselves."

In the 1980s, however, the government broke up the telecom monopoly. AT&T's telephone wires became a blank slate of a network, and new phone companies emerged, along with the Internet and a wave of innovation based on its open, collaborative ethic.

Lessig fears that overaggressive regulators and big firms are again wielding intellectual property law to reassert control and threaten the open climate that produced so many small firms with big ideas; and small firms are following their example.

Take software, for instance. Patents prevent outside software developers from seeing how a program works, studying the technology, and collectively improving it. Good for business in the short term, perhaps, but bad for science.

In 1980, there were 250 software-related patent applications. That number shot to 21,000 by 1999. As Bill Gates said in a memo to Microsoft executives in 1991: "If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today."

Watch out, Lessig warns. The FCC has allowed rich radio conglomerates to dominate access to radio waves, for instance, blocking experiments that could produce radically more efficient use of the radio spectrum. Like AT&T decades ago, the big firms that dominate the radio spectrum today benefit from the scarcity of space on the network.

Cable companies, by far the largest conduits for super-fast, broadband Internet hookups, are banning competing services from their wires, and taking steps to control content.

Like the Internet, which breaks an idea into millions of bits and then reassembles them in your in-box, Lessig's book is convincing in retrospect, but a bit scattered in transmission. Touching upon recent attempts at innovation in such disparate industries as music, film, radio, and software, much of the first half of the book seems a directionless muddle.

But then, Lessig fingers over-regulators and big corporate Luddites, explaining industry by industry who is impeding science and the common good and how they are doing it.

He closes with some policy ideas of his own - scaling back copyright, for instance, and allowing programmers to crack computer code that denies fair use of a product.

He suggests that authors and artists should be required to renew their copyrights every five years, allowing works to slip into the public domain if their creators are ambivalent about retaining ownership. And patents, no natural right, should be denied if they place profit above innovation.

Above all, Lessig aims to keep networks such as the Internet and radio spectrum free from legal speed bumps. That might check the profits of some innovators, but Lessig emphasizes that volunteers built the world's most popular server platform, Apache, as well as the increasingly popular operating system Linux. Curiosity, passion, and a freer base of shared knowledge might advance science faster than the possibility of exclusive profits on the market - at least, that's what Lessig seems to count on.

Even if that argument sounds overly optimistic, this is valuable advice on the care and feeding of innovation, and a wise caution against taking future scientific leaps for granted.

Douglas McGray has written for The New York Times Magazine and The Economist.

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