Lawrence Lessig on East-Coast vs West-Coast code

At SCALE12x in Los Angeles, Harvard law professor Lawrence Lessig delivered an opening keynote that challenged the free software community to do something it does not normally attempt: engage with the political system. Lessig is perhaps best known as a public advocate for reform in the US government's patent and copyright systems and for his activism in intellectual property issues (such as founding Creative Commons), but in recent years he has focused his attention on the more fundamental problems of how campaign financing skews the political system, severely hindering the chances for real reform in many public policy areas. As he explained to the SCALE crowd, however, those affected public policy areas include some key technology issues—and Lessig's own commitment to the cause he credits directly to his friendship with developer Aaron Swartz.

Lessig gave a Friday-evening keynote at the Hilton LAX to what was likely a record-sized SCALE crowd, one that overflowed into a second room. The heart of Lessig's talk was the similarity between law and code. He began by saying that he would tell four anecdotes: three about "East-Coast code" and one about "West-Coast code." East-Coast code, in the stories, is US law.

East-Coast code

The first story was the history of copyright extension. As famously seen with the Sonny Bono Copyright Term Extension Act (CTEA) of 1998, he said, Congress has repeatedly voted to extend the period of protection for copyrighted works. Before each such extension, Congress is supposed to ask whether or not the extension will advance the public good. Although that question entails the impossible task of predicting the value of future events, he contended, reality is that no matter how much Congress extends George Gershwin's copyrights, Gershwin will not create more works as a result. The real reason that Congress always votes to extend copyright terms, Lessig said (as many others have noted), is that big businesses like Disney donate large sums of money to Congressional candidates.

The second story was the history of radio spectrum regulation. In the early days of radio, Congress believed that spectrum must be regulated by the government because it was a scarce resource. As a result, the Federal Communications Commission (FCC) was created. Subsequently, however, other important views arose. Economist Ronald Coase argued that spectrum should be treated like physical property and sold to the highest bidder. Actress Hedy Lamarr famously got US Patent 2,292,387 on the idea of frequency-hopping spread spectrum, which looked at spectrum as a shared commodity (in which technology like frequency hopping administered access). David Reed asserted that network effects could actually increase the capacity of a network as more users joined it.

When Lessig wrote his 2001 book The Future of Ideas, he said, no one was sure which approach to spectrum was the best, and Congress was supposed to investigate them to see "which encouraged the most innovation." But in reality, spectrum law has moved in only one direction since: toward treating spectrum as property to be sold, with Congress asking only the question "who is going to make money from this allocation?"

The third East-Coast code story was about broadband Internet. In technical language, he said, "broadband in the US sucks." But the woe is not evenly distributed; it varies from state to state, and is the clear result of monopoly broadband providers. Time Warner Cable, he said, once argued that it was impossible to deliver 300Mb/s speeds to homes in the Austin Texas area, then suddenly announced it could do so after Google began rolling out its own broadband service to the city, breaking Time Warner's monopoly.

More to the point, historically the worst US state for broadband was North Carolina, Lessig said, which led to the rise of a successful municipal broadband industry. In 2011, North Carolina's Republican legislature passed a bill (H.129) crippling municipal broadband, and despite protests, the state's Democratic governor let the bill become law without signing—but publicly commenting that it would be wrong to let city governments have an "unfair advantage" over commercial broadband companies.

West-Coast code

Lessig then told the story of the 1994 Pentium floating-point division bug. Although the bug only rarely resulted in any corruption of data—an encounter could be expected only once every 27,000 years, he said—the public outrage from "people like you" forced Intel to spend $475 million dollars replacing faulty chips.

So why, Lessig asked, was the West-Coast example so different from the East-Coast examples? Why was the public moved so much by the Pentium bug that it was able to force one of the world's largest corporations to spend half a billion dollars to correct an insignificant flaw, but unable to counteract three enormous setbacks in public policy that had significant effects for the technology sector?

In 2007, he continued, he was visiting with Aaron Swartz when Swartz asked him a pointed question: how are you ever going to make progress on the technology issues you care about when there is so much corruption in the political system itself? Lessig's immediate response, he said, was that politics was "not his field." But the question troubled him because he recognized that it was true. All of the East-Coast code stories reveal the same fundamental flaw: that politicians allow large donors to unduly influence their policy-making decisions. Without addressing that problem, none of the individual policy topics was likely to see any real improvement.

In 2008, Lessig announced that he was turning his attention away from intellectual property law to focus on the root problem of political reform. He showed a screengrab of his announcement from its simulcast in the SecondLife online environment, joking that for some reason there did not seem to be any photos of the event in real life, although he assured everyone it had occurred in real life, too.

Lessig, Swartz, and several others then founded a cross-partisan movement called Change Congress, which attracted interested parties from across the political spectrum. Unfortunately, he said, after Barack Obama won the 2008 Presidential election, the movement faltered as many of the progressive volunteers shifted their attention to other organizations. Swartz was one of those who left and took up other causes, including some important actions like the SOPA/PIPA protests. At the time, Lessig said, he liked to tease Swartz about leaving the Change Congress movement, knowing Swartz well enough to know that he would eventually come back to it.

But, of course, he did not. Just over a year ago, Swartz took his own life, an event that clearly shook Lessig deeply. It was Swartz's question that had started Lessig on the path of pursuing political reform, he reminded the audience.

New Hampshire

When the one-year anniversary of Swartz's death drew near, Lessig said he began looking for a way to commemorate the date in a meaningful manner—specifically, by doing something that was as physically painful as the preceding year had been emotionally painful. What he did was gather a group of volunteers that walked with him, over the course of two weeks, 185 miles across New Hampshire, from Dixville Notch to Nashua.

The route was not just symbolic: New Hampshire is the first US state to hold primary elections. As he explained, the problem of money in politics traces straight back to primary elections. The only people who can ever stand for office in the general elections are those who win primary elections. The only people who can win primary elections are those who can collect campaign contributions, and the only people who can fund campaigns are the 0.05% of the country with deep pockets, including those behind corporate contributions. Lessig did not stop to go into much detail about calculating the numbers, but the .05% figure (which, as he commented, is around 145,000 people—or roughly the same number of people as those named "Lester") is discussed in more detail in his February 2013 TED talk and his e-book Lesterland.

That small segment of the public has an undue influence; winning politicians must spend anywhere from 35 to 75% of their time fundraising, which in turn means that they spend an undue amount of their time listening just to the 0.05% of the public that donates. That time shapes the politicians' views on the issues, he said. The politicians are not fundamentally corrupt people, but the corrupt campaign system skews the playing field. The public overwhelmingly agrees that this situation is wrong, Lessig said; polling indicates that 96% of US voters think steps should be taken to reduce the influence of campaign contributions in politics.

But the public also expects no such change to happen: the same poll shows 91% of US voters anticipate no change in the influence of money in politics. Lessig likened that sense of resignation to Superman's power of flight: almost everyone would like to fly like Superman, but no one thinks they can, so people do not leap off of buildings en masse. Unlike flight, however, Lessig argues that the public can change the political system.

The point of the walk across New Hampshire was to attract attention to the cause. Everywhere the group went, it got volunteers to agree to ask candidates about the money problem during the coming primary season. Those volunteers will publish the responses in public, hopefully catapulting the cause to the top of the debate. In the wake of the march, newspapers across the state praised the activity and gave their support to the concept. Lessig said that the walk will be repeated next year and in 2016 to further raise the profile of the issue, and encouraged SCALE attendees to get involved. "I'm here to do what Aaron [Swartz] did to me seven years ago: I'm here to recruit you to the cause of cluefulness, of building awareness."

Many in the audience will probably respond like he did, Lessig said, and say "this is not my field." That may be true of their "field" as technologists, he said, but what about of their "field" as citizens, he asked? "I'm not asking you to do this full-time, but I'm asking you for some of your cycles." The movement needs skills, he said, and it could use the "20 percent time" of open source developers, who have already shown the world what they can do by applying just a portion of their cycles and energy to software projects. He concluded by encouraging interested parties to visit nhrebellion.org or rootstrikers.org and get involved.

The talk was an unusual one for SCALE, where politics is rarely on the agenda. But the crowd responded with enthusiasm, to the stories of technology policy, to the analogy of zeroing in on a flaw like the Pentium bug and fixing it, and to Lessig's personal account of how his friendship with Swartz forced him out of his comfort zone to tackle a major issue. The issue of reforming the influence of campaign money in government is indeed one that cuts across many other political divides—and affects many sectors of public policy, technology included.