PW: Your earlier books, Code and The Future of Ideas, are considered landmark works. Where does this latest effort, Free Culture, fit in?
Lawrence Lessig: The first two books were more Internet books. They focused on the relationship between technology and policy. This book really steps away from the Internet to focus on a more fundamental issue that is sometimes caused by the Internet but is not really limited to the Internet, and that's the unintended consequences of the copyright wars. I only came to copyright because of the Internet. But now that copyright is much more fundamental and important, I wanted to write this book.
PW: Some readers may have the impression otherwise, but you are in fact a strong supporter of copyright, true?
LL: Absolutely. I am a fundamental believer in the balance of the traditional system of copyright. I just think we've lost touch with that balance.
PW: In the digital age, is copyright dead? Is it going to be fully replaced by the click-on license?
LL: That is a substantial concern. What's interesting is that 10 years ago, that question—is copyright dead?—meant, "Will it be impossible for authors to control their copyrighted material?" One of the first points I tried to make in Code was that that's exactly the opposite from what the future will be. The future will be a world where using technology, you will be able to control the use of your material more than copyright law allows. Your question nicely reflects the way that understanding has evolved.
PW: The music industry is an example of this—you write about its strategy of tracking down and suing alleged downloaders. Can the industry sue file-sharing away?
LL: No, this is scapegoatism. The part of this that outrages me about this is that RIAA [Recording Industry Association of America] talks about morality, then they bring lawsuits against people they know cannot begin to defend themselves. These people face this Mafia-like choice—your money or your life—because even if they did successfully defend themselves, they could never recover the costs of defending themselves. They have no choice but to cave in. Whatever one thinks about the morality of downloading music, I don't know anyone who thinks scapegoating is moral, and that is the behavior the RIAA is engaging in.
PW: It's curious to read how hard you took the Supreme Court loss in the Eldred case [Eldred v. Ashcroft, the legal action to overturn the Copyright Term Extension Act, which Lessig argued].
LL: Many people are surprised by that. One of the reasons I took it so hard is that I think so clearly that we are right about this. If you know the issues as closely as I got to know them in the context of this case and you hold the court to standard of principle—meaning that they decide these cases on the basis of principle and not political views—then the Court should have voted with us. The fact that they did not was a disappointment not just for the case, but for my perception of the Court. A lot of my life is bound up with the validity and availability of the rule of law. When the Court fails to live up to its promise, it's an extraordinary disappointment.
PW: How has losing that case affected your work?
LL: It's affected me in the sense that I realized that the Court is just not ready for this battle. This battle will have to be waged politically for a while until the establishment regains a sense of balance, so the Court feels it is not stepping into some extreme space when it just does what the Constitution says.