LEGAL AFFAIRS
Cyber law is turning a generation of young people into criminals for daring to engage with culture again, but what's the solution? Prof Lawrence Lessig thinks he knows, writes RICHARD GILLIS

'WE ARE currently in the middle of a war, and the terrorists in this war are our children," says Lawrence Lessig, the internet's most influential intellectual. Governments around the world are mobilising their vast resources to fight what he calls a "self-righteous jihad"; suing kids for downloading music and launching legal actions against the sharing of digital content.

"It is a classic war of prohibition, and it has had no effect whatsoever on the filesharing, and has had no effect [regarding] giving money to artists."

The only thing this war has done is render a whole generation of kids as criminals. The implications of this will be profound, he says, not least because it means breaking the law has become a part of daily life for millions of young people.

This is no blogger's rant but rather the considered views of the man described by Wiredmagazine as the "Elvis of cyber law", a man whose opinions on the issue of copyright were formed during his involvement in the greatest landmark case in tech history.

Now professor of law at Stanford Law School, Lessig was one of the driving forces behind the American Department of Justice's anti-trust lawsuit against software behemoth Microsoft.

So smart was Lessig's preparation of the government's brief in that case, Microsoft manoeuvred to get him removed from the prosecution's team. Since his exposure to the international spotlight, his books have been used as a road map to the new internet economy.

His new tome, Remix,is his take on the coming together of the sharing, collaborative nature of net projects such as Linux or Wikipedia with the commercially-driven imperatives of today's media business. This relationship, he says, will shape how we live over the next century. And currently, the law is not handling itself very well.

Existing laws of copyright and trespass are not flexible enough to cope. When the opportunities offered by digital technology rub up against existing copyright law, the result is that activities such as filesharing are rendered illegal. Today's culture - film, music, photography, art - is largely produced in digital form. This means "every single use of culture produces a copy, and every single use of that culture requires permission from the owner - without it you are trespassing".

This stand-off has created intransigence on both sides of the debate. "The content owners, like big media companies, are developing new technologies that they say will take down any copyrighted material from sites like YouTube," says Lessig. "On the other side, there is a movement that is prevalent among young kids, which is akin to a form of copyright abolitionism, which rejects the very notion of what copyright is supposed to achieve. It believes nothing more than the law is an ass which needs to be fought or ignored." Both extremes in this debate, says Lessig, are wrong, and we need to find a balance, what he calls the 'Hybrid Economy'.

Currently, there are spectacular examples of this being done badly, he says, citing the example of film mogul George Lucas, who has a Star Wars"mash-up website". Here anyone can log on to upload their own content, in the form of music or pictures, to that of the main Star Warscharacters.

"Obviously Lucas is doing this because he's interested in taking a studio franchise and making it interesting to a new generation of moviegoers," says Lessig. "But read the terms of service on the site: it says that all rights to the mash-up are owned by George Lucas. So for anything that you contribute to the project, he will have the perpetual world rights and the ability to exploit commercially. This is not the sharing economy working with the commercial economy. This is share cropping in the digital age. My point is that there is a big difference between this sort of thing and genuine hybrid businesses that are respectful of the work being done."

One of Lessig's themes is that the 20th century was a blip in the evolution of our relationship with culture. Before the advent of television, radio and other forms of broadcasting, we enjoyed what he calls a "read-write" culture. This means we participated in, for example, music or art. But the last hundred years have produced a "read-only" culture, a top-down process by which we passively receive movies, television, music. Digital technology has merely corrected this process again.

"Our kids are different," he says. "We made mix tapes, they re-mix music; we watched TV, they make TV. It is the technology that has made them different and as we see what this technology can do we have to recognise that you can't kill the instinct that the technology produces, we can only criminalise it. We can't stop kids from using it, we can only drive them underground. We can't make our kids passive again, we can only make them pirates. Is that good?

"All the dominant forms of culture, like the movies or popular music, became the sort of things professionals do; amateurs don't have the economic opportunity to do that. Kids today can do those things and they do stuff that when I was 20 I thought that I needed to hire a specialist company. It is just this weird century - the 20th century - where we veered into this read-only culture."

When he refers to the sharing economy, Lessig makes a clear distinction, lest his views be misinterpreted. What he is not advocating is the mass downloading of music, film or computer games - digital content owned by somebody else - for commercial reasons. He is in favour of greater freedom to take existing content and re-create it in to something else.

"It's not about technique," he says. "Just taking pictures of film and music and mashing them together is not new. That sort of thing has been available to broadcast professionals for the last 50 years. But what's important is that that process has been democratised. Anybody with access to a $1,000 computer can take sounds and images from the culture around us and use it to say things differently. These tools of creativity have become tools of speech: it is a new literacy. It is how our kids speak today. It's how they think and it is what they are, as they increasingly understand digital technology and its relationship to themselves."

This is, he says, an age of prohibitions and in many ways we live our lives constantly against the law - ordinary people, smokers, drivers, drinkers, music sharers, are familiar with the feeling.

"That's what we're doing to our kids. They live life knowing that they do so against the law. That realisation is extraordinarily corrosive. And extraordinarily corrupting. In a democracy we should be able to do better for our people."

Lessig is the author of Remix: Making Art and Commerce Thrive in the Hybrid Economy(Penguin)