blog/ entry/ Lessig at the University of Washington

On Friday 2007-11-02, I watched Larry Lessig give a presentation at the University of Washington entitled Is Google (2008) Microsoft (1998)? Since it was Lessig, the talk was articulate and thought-provoking, and he used his slides very well (unlike many presenters who just read bullet points).

The argument he made is that Google is like Microsoft in some ways (and so are other companies like Facebook). In his analysis, the problem with Microsoft was that so many companies made themselves Microsoft-dependent, which both forced other companies to follow suit (due to network effects) and gave Microsoft leverage they could use against everyone in their ecosystem (e.g., Netscape). According to Lessig, Microsoft was not evil to use this leverage, but you have to recognize that Microsoft will do what is best for Microsoft, and this may not be what is best for you. He then suggested that we should be aware of the potential for the same thing to happen; in support of this point, he quoted excerpts from the terms of service from the APIs of Google and Facebook, which contain typical statements like we reserve the right to terminate your use of this service for any reason or for no reason, and asked: What if Microsoft had written this license agreement?

But it seemed to me that this wasn't his main point. He was using this observation as a springboard to talk about issues revolving around competition and public policy. Specifically, he feels that we should work towards a more just model of interaction between companies and users whose work makes the company more valuable (by contributing to a software ecosystem, by posting content on the Web site, etc). But the correct way to do this (he says) is not via competition, after-the-fact litigation, or voluntary codes of conduct: competition may not be around to enforce good behavior (as we've seen with Microsoft), litigation may be too late and ineffective (again, see Microsoft), and voluntary codes of conduct will disappear as soon as they get in the way of the bottom line. The correct approach, he argued, is across-the-board regulation so that all the companies have to play by the same rules.

From there he went on to talk about governmental corruption. He said (quoting Robert Reich's book Supercapitalism) that the reason we consistently look for solutions in the market and in voluntary compliance is that our governmental system is broken and does not effectively regulate corporations in the public interest. But Lessig is optimistic that we can change things (he joked that his publisher was unhappy with this point of view, because his brand has been built on pessimism). In his view, the politicians in Washington, by and large, want to be honest and do good, but they aren't able to within the current political system. For instance, on the few occassions that he managed to get access to lawmakers to discuss copyright issues, it was often the first time they had heard that there was more than one side to the argument. He thinks we need a national political movement that will shame politicians into being less corrupt.

This is all a simplification of what he said, of course; unfortunately, I wasn't able to find a recording of this talk on Lessig's Web site, or I'd point you at primary source material. I don't know if this is because he chose not to post it, or because it just hasn't been made available yet.

My view

In general, I thought that the speech was very interesting and well thought out. But as much as I'd like to buy into his optimism that we can fix our system, I don't think it's well-founded, for two reasons.

First, he argued that competition will resolve some of these problems (that was before and after he said we can't rely on competition, which I found confusing and may indicate that I misunderstood something). His evidence for this seemed to be that when Microsoft was dominating the world, users responded by reducing their dependence on Microsoft products and by switching to alternatives such as Linux. But, in fact, although more people may be using Linux than in the past, virtually everyone is still only using Windows, it's still almost impossible to find a programming job that isn't Windows-only, and Microsoft is still raking in money hand over fist; indeed, they're doing so well that they're planning to expand their workforce by a third. To take just one data point of many: I ride the bus to Seattle and back, and I regularly see other people using laptops as they commute. Virtually all the laptops run Windows. Occasionally I'll see a Mac, and every few months I'll see a guy running Linux on his laptop; I say "a guy" because it's the same guy every single time. So by my estimation, use of Linux on laptops in buses on the 545 route from Redmond to Seattle is way below 1%, with Macintoshes somewhere around 5%.

To broaden my point, I think Lessig has fallen into a trap that highly intelligent people, particularly those in academia, tend to fall into. In academia, you are surrounded by people who value learning and thinking deeply about the world. These are people who will give serious and unbiased consideration to questions like what is the social effect of my acceptance of the Facebook Terms of Service? and If I become dependent on this service, will that possibly affect me in five years if the company decides to act against my interests? The problem with this is that these people are not representative of the population at large. The population at large thinks why is this check-box getting in the way of me sending pictures to my friends? And I have no doubt that any kid who, e.g., refuses to sign up for Facebook as a protest against their TOS will be roundly mocked in their social circles for being a weird antisocial nonconformist. (of course, this may not apply to the small minority of people like myself whose social circles consist of weird antisocial nonconformists)

Second, Lessig's optimism about the political system seemed to be based on his observation that the people in government are, by and large, not venally corrupt: they want to do good, but the system is constructed in a way that makes this impossible. To me, that's a tremendously disheartening statement. If our problem were simply a few, or even many, corrupt politicians, this would be a solvable problem: even nowadays, Americans have some ability to choose who gets elected, and I believe that a sufficiently well-coordinated campaign could replace bad politicians with good ones.

But if the problem is that the system is corrupt even when the individuals are honest, it's a much deeper problem and frankly one that I don't know how to solve. While individuals have some direct control over who gets elected, we have no way to directly change the system that produces the corruption; the levers to do this are in the hands of the politicians elected through that broken system. It's unlikely that the politicians themselves will fix the problem, because they've benefited deeply from it: if the system is left as it is, well over 90% of Congress members will keep their jobs in the next election cycle, and any effective change seems likely (by definition) to disrupt this cushy arrangement.

On the other hand, running new candidates for office will not fix the problem. After all, if the problem is that the system is corrupt even when the participants are honest, then putting more honest people into government will have no effect. In order to get elected, these new politicians will have to become just as corrupt as the old ones, because that's how the system is set up. So we might change the faces, but we'll have the same old problems.

I recall two specific concrete proposals that Lessig made to make the system more responsive. First, he suggested shaming politicians who engage in corrupt behavior -- presumably taking large donations from interested parties. I don't see how this will help. Americans generally have a very low regard for the political class as it is; will pointing out particular examples of politicians taking money really make a difference when it comes to votes? And if it doesn't, will it really produce any change in their behavior? Politicians are motivated by votes the same way corporations are motivated by money; unless they stand a chance of losing their job (which is virtually impossible in any event), there's no reason for them to change how they behave.

His second proposal was for a system of contributions where it's impossible for any individual to prove they had donated a particular amount of money to a particular candidate. Even assuming it could be implemented perfectly, I don't think this will really solve the problem, for two reasons. First, it's not generally a secret what moneyed interests want. Politicians who want to attract large donations can just take positions that they know will appeal to donors of that sort. The donors themselves can make this easier on the candidates by, e.g., posting public position statements on issues of the day. Secondly, and this is far more insidious, even if politicians honestly represent their positions, then because success in running for office is so tied to the amount of money the candidate can raise, only candidates who hold opinions favorable to large corporations and wealthy individuals will be able to get elected. In fact, for all I know this is what happens already!

But with all that said, it was a really interesting talk and Lessig tied together some things you might not think would go together. If a video or Flash presentation becomes available, I would recommend watching through it. And hopefully my pessimistic predictions will be wrong; it's certainly happened before.

Comment by M. Grégoire at 2:37 PM:

I've often been surprised by how much more influence lobbyists seem to have in Washington than in Ottawa. (Seem is an important word here; perhaps it's just less visible in my country.)

My conclusion is that the fundamental difference has to do with the relative weakness of the party system in the US. In Canada, MPs do what their party leaders tell them once elected, and MPs are elected on how the national party campaign goes far more than on their own efforts. It's nearly unthinkable that an individual candidate would have professional looking TV advertising, for instance.

Given the power of the parties and the weakness of individual MPs, there's really no point in lobbyists giving money to a particular MP. She won't really have the opportunity to tuck a useful amendment into a bill. No, if lobbyists seek influence, they have to buy off a party or at least a cabinet minister.

There are certain obvious flaws to the system in Canada, but OTOH it means that lobbying is much less of a problem in general. It's obvious when (say) the ethanol industry buys off a party, and it's much more expensive than buying off an individual MP. Similarly, there's much less pork, because individual MPs have almost no influence over government spending decisions. (Another effect of a stronger party system is that you can hold parties accountable for failing to enact their platforms.)

If you want to discourage lobbying by strengthening the US party system, replace primaries with caucuses or other mechanisms that can more easily be controlled by the party establishment; and re-write campaign finance laws to encourage more "soft money", less "hard money".

A little different from conventional wisdom about what's wrong with the American government system, eh?

Comment by Anonymous at 3:55 PM:

excellent read, i look forward to seeing lessig's speak online.

thank you very much

Comment by dburrows at 6:47 PM:

M. Gregoire:

I bet you know this already, but you have the same name as the governor of the state where I live.

I can believe that strong party discipline can help avoid corruption at the level of individual representatives. On the other hand, the Republican party's control over its members in the last 6 years was phenomenal, and look where it got us! I tend to think that our problems are big and complicated and multi-faceted, and any individual change is only going to be part of an eventual solution.