"The future is a world where using law and technology together . . . [the entertainment industry] gets to control things perfectly," Lessig said. "We need the period of experimentation; give me 10 years before we get to that conclusion, but don't restrict the innovation now."
Lessig, a prominent legal thinker about Internet and technology issues, spoke at the O'Reilly Peer-to-Peer Conference in San Francisco.
In his talk, "Free Code, Freeing Culture," Lessig said the federal appeals court decision against Napster will force the company to re-architect its system to hunt down copyright violators. The decision, he said, gives copyright holders in the entertainment industry - which he referred to as "lawyers to the stars" - the power to determine how technology is developed.
"What Hilary Rosen [president of the Recording Industry Association of America] said, frankly, was that the purpose of the Napster case was to send a message to venture capitalists in this valley, and the message is: 'Unless we approve your idea, it will not be permitted, it will not be allowed,' " he said
On Monday, Feb. 12, the 9th Circuit Court of Appeals in San Francisco upheld the bulk of the injunction issued against Napster by a lower court, which said Napster must stop allowing the sharing of copyrighted material on its service. The ruling would force Napster to radically alter service, and analysts said it could force the company out of business altogether.
Lessig said that the issue raised in the Napster case is "not about what the law was. It's about what the law should be."
"There's a political battle, and it's about time we started fighting it," Lessig said. "Seventy million [Napster] users will increasingly say, 'Hey, [President] George W. [Bush], you can't let them shut us down one song at a time.' . . . Whether this is the rule depends on what people do, not what judges do, not what the [U.S.] Supreme Court does."
In the court of public opinion, he said, the rights of individuals don't have the same level of support that those of copyright holders do. The American public generally believes movie studios and music labels have the right to protect and enforce control over the content they distribute, Lessig said.
"We're losing the idea war," he said. "The public is on the side of Hollywood . . . [Legislators] think they're defending the American way against hippies and communists."
Lessig compared the current fight over copyright issues in the context of peer-to-peer file-sharing networks to the battle over regulating pornographic material online. In that instance, U.S. courts decided in favor of not regulating pornographic Internet sites.
"This is the same question we had six years ago, when the Internet first exploded in the public consciousness, about the pornography crisis," Lessig said. "The principle that the Supreme Court articulated [then] was that we had to wait to see how this network would develop . . . What we thought we already knew was that we stand back, and we wait to see how things shake out before we send in the lawyers."
There is a danger that technology will provide almost absolute control over the distribution and use of content, Lessig said. He cited the example of the license that accompanies an e-book distributed by Adobe Systems that restricts the ability of a person to print or share the material, or even to read the book aloud.
"The technology that liberates copyrighted material is also the technology that gives the copyright holder perfect control over copyrighted material," he said.
Lessig stressed that the rights of copyright owners and content producers should also be taken into consideration. However, he said, technology should be allowed to develop before those rights are codified into law. "The courts are ratifying the ability of these interests to regulate cyberspace now, before we even know what it's going to look like," Lessig said.
Unless the legal system allows innovation first, and then figures out how to balance the legal interests second, "existing interests get to leverage either power to decide what sort of innovation is allowed," he said.
"If we give in to the principle Hollywood is demanding, which is stop innovation first, then every place you design a system that is not perfectly searchable by the government to make sure the laws are not violated will not be allowed," he said.
"The question is not whether the interests Hollywood speaks about are invalid. Of course they are [valid]," Lessig said. "The question is how we balance this new system of interests with the extraordinary opportunity for innovation."
