Wednesday, July 6, 2011

And Speaking of the Inalienable Right to the Pursuit of Happiness . . .

Happy Fourth to you all! Along with 90 (and still counting) other Internet law and IP law professors, I have signed a letter (drafted by Dave Levine, Mark Lemley, and me) in opposition to Sen. Leahy’s “PROTECT IP Act.” [The letter is posted below — the text of the bill, if you’re into that sort of thing, is posted here.]

PROTECT-IP Letter, Final

Foreword
Lawrence Lessig
1

History makes insight seem easy. Generations later, what
was amazing seems obvious. After decades of confirmation and
reflection and commerce, the radically new and important is con-
firmed. Once confirmed, the historians get to point to it. There is
an “it,” at some moment. Everything important seems to follow.
But at the time when that “it” gets born, its significance is
not obvious. Its importance or potential is not clear. Indeed, most
at the time don’t even get it. Most don’t see why the thing that will
someday be “critically important” is, or was, then.
Most, but not all.
This book is about two souls who are not among that
“most.” The one, the author, David Post, has seen a future for the
Internet for as long as I’ve known him; the other, the admired,
Thomas Jefferson, saw the future for a Republic, and struggled
with how to get others to see.
Post is a founder of a field of legal thought called “the law
of cyberspace.” He mapped its contours before most had a brows-
er. That map was an inspiration, mainly. It was bent, but only by
an optimism about how people might live. He had architected a
framework that seemed to him inevitable. That inevitable is not yet
here.
This book continues his map. And perhaps because he re-
cognizes just how difficult it will be to get people to understand
something that is so radically different, he has crafted that map on
the model of perhaps America’s greatest political architect, Jeffer-
son.
But like Jefferson, Post wants to show us, not tell us. He
wants you to look at things that can’t help but change how you see
the familiar. He wants to set before you pieces which when seen
together, when synthesized, change how you think about some-
thing you thought was familiar. He wants that synthesized view to
convince you of just how significant this new world could be.
1
Professor of Law, Harvard Law School, Director, Edmond J. Safra Center for Ethics.

What he has shown us here will teach about more than just
cyberspace. Post remains among the most insightful theorists of
cyberlaw. But this book connects that theory to the very best of the
idealism about what the American Republic could have been.
At the time that question troubled Jefferson, there was an
endless frontier to the West. After Jefferson cheated his own con-
stitutional principles to secure the Louisiana Purchase, there would
be an endless American frontier to the West. By purchasing that
future, and tying it to a set of ideals about freedom, Jefferson
hoped to leave us with a Republic perpetually young, with citizens
forever devoted to the discipline of creating with their hands, and
with a government selected by these responsible citizens, focused
only on a public good.
The west was not endless. We citizens were not all yeomen.
And government quickly found foci beyond the public good. Jef-
ferson’s Republic was not secured. Jefferson’s Republic was lost.
Unless, of course, cyberspace revives it. For better than an-
ything I have ever studied, this work makes compelling the link
between Jefferson’s ideals and the potential of a particular version
of cyberspace. There is an architecture of that space that would as-
sure an endless frontier to the West. There is a virtue that could
come from crafting that frontier, and from the yeoman work it
would take to build it. And there is a Republic that would be
formed, and secured, both there, and possibly here, if we could live
that life with the idealism, and the principles, that Jefferson,
through Post, celebrates. Post thinks of cyberspace, like Jefferson
thought of America, as some place different. As an exception, at
least if practiced with the right values.
At a time when the rage to restore control in cyberspace on-
ly grows, Post’s beautiful book is a powerful balance. You will see
this space differently after this short work. You will understand the
brilliance of Jefferson more. And the two together might well
make this book Post’s moose: For after a decade and a half of
watching most deny what David Post has asserted, I agree with the
feeling he no doubt had when he put this book to bed:

They must see it now.

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