Ending the Revolution

By Katyal, Sonia K. | Texas Law Review, May 2002 | Go to article overview

Ending the Revolution


Katyal, Sonia K., Texas Law Review


Ending the Revolution

THE FUTURE OF IDEAS: THE FATE OF THE COMMONS IN A CONNECTED WORLD. By Lawrence Lessig.^ New York: Random House, 2001. Pp. x, 333. $30.00.

COPYRIGHTS AND COPYWRONGS: THE RISE OF INTELLECTUAL PROPERTY AND How IT THREATENS CREATIVITY. By Siva Vaidhyanathan.^^ New York: New York University Press, 2001. Pp. xi, 189. $27.95. I. Introduction

Last fall, standing before a crowded hall of open-source programmers, Lawrence Lessig, fabled speaker of the intellectual property world, made a critical observation about the future of law and technology. "We are a house divided," he declared to the riveted audience. "You built an extraordinary platform of innovation and creativity.... My kind (lawyers) are working to shut it down."1 His remarks strike at the core of the problems surrounding the Internet and technology more generally. As the new millennium began, Americans stood in the midst of seemingly exploding prosperity, driven by an intellectual wealth of ideas for e-commerce, not to mention unprecedented numbers of venture capitalists endlessly willing to dote on the young, trendy dot-com crowd. Amid this confluence of money and ideas, everything seemed possible.

Yet only six months into the year everything seemed to falter and, just as rapidly, collapse into oblivion. Nothing marked this breathtaking rise and fall as pointedly as the legal developments surrounding Napster. In 1999, Napster was the poster child of the Internet revolution - commanding millions of users, and countless downloads of digital music daily. After a dramatic series of events in 2000, district court judge Marilyn Hall Patel made a seminal equation between copyright theft, piracy, and the company's peer-to-peer architecture.2 Despite a brief respite as the Ninth Circuit IMAGE FORMULA9considered the case on appeal, the service eventually shut down, and has remained shut ever since. In a lengthy opinion, the Ninth Circuit echoed the bulk of Patel's proscriptions, save for a short (and largely toothless) section acknowledging the virtues and limitations of the company's peer-to-peer architecture.3

Although some have optimistically concluded that such legal events precipitate the end of piracy across the Internet, others see the Napster case-- and the company itself - as something more significant. To them, Napster is a symbol, draped with political overtones about the future of the relationship between innovation and law in a high-tech world. Although Napster still remains the most recognized brand name in music, some have concluded that it has also become a tragic emblem of a peer-to-peer world prematurely saddled with legal regulation and control.

Indeed, the complications surrounding the peer-to-peer world symbolize the intensely fragile, and often rivalrous, relationship between law and digital technology. Although intellectual property has been standing quietly in the background since our nation's constitutional birth, no other field of law has been so recently rediscovered, and so hotly debated, among both lawyers and nonlawyers. Like the issue of civil rights in the 1960s, intellectual property today serves as a lens through which to examine our constitutional ideals against the rough terrains of reality (here, digital reality), and to explore the tensions between private and public ownership. From its inception, creativity and innovation have remained at the core of intellectual property. However, these core values are becoming as deeply politicized and idealistic as the values of freedom, equality, and liberty themselves.

The irony - and the difficulty - is that each side's position has substantial merit. No one would disagree that the past five years have witnessed an explosion of ideas, inventions, and innovation. However, according to some, these developments have also threatened the very purpose of intellectual property, spawning an unprecedented expansion of costly and contentious litigation. …

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