Marxist-Lessigism
AT SWARTHMORE COLLEGE, the crowd is mostly students, and maybe a few professors and interested outsiders. It's a typical turnout for a public lecture by a well-known law professor. But there is something different and a little odd about this group. Swarthmore doesn't have a law school, so the audience includes no young men in suits that still have the label attached, and no young women with high-heeled shoes so new the soles aren't scuffed. And there is something else, something funny about the T-shirts. Everywhere you look, there are T-shirts with slogans, not logos. No "Tommy Hilfiger" and "Ralph Lauren" here. Just shirts with references too obscure to parse. What is "Downhill Battle"? Or "Grey Tuesday"? One kid has a shirt with the picture of a skull and crossbones on it, and written boldly across it are the words "Home Taping is Killing the Music Industry." Look closer, and you'll see, in tiny type, "(And it's fun)."
A couple of students get up to introduce the speaker. They're nervous, disorganized, and rambling. Now you notice the handmade signs: "Swarthmore Coalition for the Digital Commons" is taped to the lectern, and "Free Culture" is written on the wall. It starts to become clear. This isn't just a lecture; it's a political rally. People start to shuffle; the students are losing their audience as the garbled introductions continue. But when the speaker gets up to start, the shuffling ends and there is a ripple of excitement. He is Lawrence Lessig, the Stanford law professor, known to this crowd as Larry. Dressed in black and wearing a pair of spectacles that could have been handed down by Ben Franklin, he waits until the crowd settles. And finally, you get it. Outside, lightning is cracking, but the smell in the air is not the ozone from the thunderstorm. It's the smell of revolution.
INTELLECTUAL PROPERTY—"I.P.," AS IT'S CALLED—revolves around three basic property interests granted by federal statute: copyrights, patents, and trademarks. Copyrights cover expression by authors of various sorts, including books, plays, music, and so on. Patents protect underlying ideas of useful inventions and processes, such as a chemical reaction or an inventive mechanical device. And trademarks cover business brands. For much of the 20th century, these I.P. interests (and other close cousins such as trade secrets, unfair competition, and celebrities' publicity rights) were narrow and uncontroversial. Businesses in the industrial era cared about the factory, the production line, and the land needed for them. But as the modern era rolled on, the importance of industrial production waned. No longer were heavy machinery and physical plants the predominant means of production; no longer was physical inventory central to industry. In the developed world, control over intangibles came to dominate the business agenda, and so too the political agenda.
First introduced in the United States in 1790, copyright was limited in its infancy to protecting musical, dramatic, literary, and artistic works for 28 years, and it was later broadened to encompass photography, video, and software for a period often in excess of 100 years. Patent scope was widened, first to include computer algorithms and then business methods—including those such as Amazon.com's patent for one-click online purchases—and then life itself. In 2000, companies including Celera Genomics and Incyte started receiving patents on sequences of the human genome. Trademarks too were set loose from their historical moorings. Not only was the trademark term extended, but the prototypical application of a physical brand to a physical product was no longer the limit of trademark. The sound of the Harley-Davidson exhaust for motorcycles or a distinctive color of dry cleaning pads was equally protected.
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Marxist-Lessigism
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