Seminar Discussion Questions
Lessig, The Future of Ideas, Chapters 1-3
Cyberspace Law Seminar
University of Iowa, Nicholas Johnson
February 6, 2002

*** Updated February 5, 2002, With Questions for Chapter 3 ***

For our evening discussion, Wednesday, February 6th, let's read the first three chapters (1. Free, pp. 3-16; 2. Building Blocks: "Commons" and "Layers," pp. 19-25; 3. Commons on the Wires, pp. 26-48).

We are reading Lessig because we want to develop for ourselves a paradigm, or way of thinking about, the law and public policy we’d like to see applied to the Internet, or cyberspace. We intuitively recognize that requires a level of understanding of the technology and its architecture and the ways in which they are interwoven with pre-Internet legal systems, new ways of seeing, old and new business models, the role of national governments and their regulatory agencies, and international and global stresses and trends.

As you read, think about, and be prepared to discuss (among other things), the following questions. We will use most or all of them during our seminar discussion. But they are also simply illustrative of other questions that may occur to you while you read. Because they are designed to make the point that we’re doing something more than scanning our eyes over the pages – with or without a highlighter. We want to reflect upon, react and respond to what Lessig is saying. What about his analysis strikes you as simplistic, internally inconsistent, or just plain wrong? At what points do you find it brilliant, creative, insightful and analytically helpful? What about his perspective do you find helpful in thinking through the law and public policy surrounding the Internet in general, and the application to it of copyright law in particular?

Chapter 1. Free.

Clearly, Guggenheim has a lot of aggravating (and sometimes costly) details to deal with. But do you agree or differ with where Lessig seems to be going with this? That is, so long as Guggenheim is making money from the film, why should he not properly share some of that profit with those whose creativity has been somehow included within it? Or, if we are balancing interests here, what are those interests and how would you strike that balance? (pp. 3-5)

Do you agree that the "struggle at stake now is between old and new"? If so what is this "new" he's talking about? Is it anything more than his desire to change the property rules of the game? What is this "old regime" to which he refers? (p. 6)

"Rip, mix, burn." Lessig thinks that's just fine -- although he acknowledges that "ripping" is just another word for "copying," that is, violating the copyright law. Is his use of the word "share" (bottom of p. 9) designed to distinguish his concept of non-profit "rip, mix, burn" from those who would copy for purposes of commercial exploitation of their theft? (p. 9)

Consider his examples, p. 10, 2nd full paragraph. Do you agree that they will, in his words, "make human life more, not less, human"? Do any of the examples involve challenges to the copyright law?

Under conventional copyright standards, in what sense is Lessig right (and in what sense wrong) that "Einstein's theory of relativity is a free resource"? (p. 12)

As Lessig defines it, what's the difference between "free beer" and "free speech"? (p. 12)

Lessig points out the similarities between his examples ((1) par. beginning bottom p. 12-top p. 13; (2) par. beginning bottom p. 13-top. p. 14). What are those similarities? But what are the differences between them that he fails to note?

Lessig says, "obviously, many resources should be free." (p. 14, full par. 3) By the end of this chapter do you have a working notion of (1) which categories of resources those might be, (2) which (if not all) aspects of those resources should be free, and (3) what kinds of payment can be exacted from the exchange of a resource and still consider it "free"?

Chapter 2. Building Blocks: "Commons" and "Layers"

In what sense is the Oxford English Dictionary (OED) “mankind’s first large-scale collaborative open source text project”? (p. 19)

Speaking of dictionaries, is there any connection between the words “commons,” “commune,” “community,” “communitarian” – and that other dreaded “C word,” “communism”?

It’s easy to dismiss Lessig’s assertion that “the highways are open and free” (and just why is that not accurate?), and that we don’t “insist on particular licenses before we allow people to use the streets or highways” (that one’s easier). But in what sense can you say that the way he is using his terms (such as “commons” and “free”) make these perfectly accurate and usefully insightful analytical statements (that will be of later use to us in examining the Internet)? (p. 20)

How might you use conventional copyright analysis to express what Lessig puts as, “Einstein’s theory of relativity is a commons”? (p. 20)

He says a public “park is ‘free’ in the sense that I mean even if an access fee is required.” How can something be "free" if you have to pay for it? Why is a movie theater not equally “free” in this sense “even if an access fee is required”? What’s the difference? (p. 20)

What does he mean by “rivalrous” and “nonrivalrous” resources? What are some examples? Can a rivalrous resource ever be a part of a commons? How? What is the relationship of these resources to what he calls the “incentive to create” and the “demand to consume”? (p. 21)

In what ways is the Internet a commons? What are some examples of the rivalrous and nonrivalrous resources it contains? What roles are played, in this connection, by incentive to create and demand to consume?

Up to this point, to the extent Lessig has been talking about things of relevance to the law of copyright, and the operation of the Internet, his focus has been on the content (e.g., music or text) of what is being communicated. Now suddenly (p. 23) he introduces his concept of the “layers” in a telecommunications system. What are those layers? What are the four case study examples he uses to illustrate what he means and how do those examples, and their layers, interrelate? What does he mean by “controlled” or “free” in this context?

Layers is not a concept that applies to the Cambus, interstate highway system, or Mississippi River barge traffic, but take a swing at it anyway: If you had to apply the layers analysis to those transportation systems what would be the elements of each layer? Are those layers free or controlled, as Lessig uses the words?

Chapter 3. Commons on the Wires

What does Lessig mean by his expression "innovation commons"? (pp. 26, 40) How does the World Wide Web illustrate this quality of the Internet? (p. 41)

What were the practical consequences for telephone company customers of the presence, or absence, of "interconnection"? Did AT&T's early (c. 1910) efforts at interconnection encourage, or impede, competition? (p. 28)

What was meant by "universal service"? (p. 28)

What was AT&T's rationale for opposing the "Hush-a-Phone"? (p. 30)

What were the differences between AT&T's network design and that of Paul Baran? What is the significance of those differences? (p. 31)

To what extent do "packets" provide a defense of sorts to a nuclear attack? (p. 31)

Under the AT&T system/approach where did the forces for innovation come from? (p. 32)

Lessig notes that "what AT&T was doing . . . may well have made sense for the interests it understood itself to be serving." What interests might those have been? What consumer advantages can you argue might have come from the AT&T model? (p. 32)

In what way is it true that "our telecommunications architecture . . . was architected to maximize the power and control of the few"? (p. 33)

What is the meaning of the "end-to-end argument" (e2e)? (p. 34) What is its significance? (pp. 36-37)

Lessig quotes Mitch Kapor as saying "architecture is politics." Lessig argues in Code and Other Laws of Cyberspace that "it was the architecture of cyberspace that constituted its freedom." He says that the focus of our book is on "the relationship between architecture and innovation." What do statements like these mean? (p. 35)

The "Web's" inventor, Tim Berners-Lee, is quoted as saying that the Web's growth required that it be "out of control." What does he mean by that? (p. 37)

In what sense was the AT&T network "smart"? Why was it dumb to design a smart network? How does a dumb ("simple") network encourage innovation? (p. 38)

Is the electricity network smart or dumb? In what ways is it, and is it not, analogous to (a) the old AT&T network, or (b) the Internet? (p. 39)

What is an obvious choice/selection that might be useful on a smart Interstate highway system or systems? (p. 39)

According to Lessig, what is "placisity" and why is it "optimal"? Do you agree? (p. 39)

Under Lessig's analysis ("content," "code," and "physical," p. 25) how would you classify (a) "the Internet," or (b) "the World Wide Web," and why? (p. 41)

What legal control/ownership was exercised by the inventor of "the Web" (and/or his/her employer)? (p. 44)

What forces contributed to making AT&T's controlled network into a commons? (p. 45)

How can improved "Quality of Service" become anticompetitive? (p. 47)

What is meant by "infinite bandwidth"? (p. 47)

And, finally, do these discussion questions constitute a "derivative work" that violates Lessig's copyright in his book? Why or why not?

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