>> funding for overheard with evan smith is provided in part by hillco partners, texas government affairs consultancy and its global health care consulting business unit, hillco health. and by the mattson mchail foundation in support of public television. and also by mfi foundation, improving the quality of life within our community. and also by the alice clayburg reynolds foundation and viewers like you. thank you. >> i'm evan smith. he's a celebrated academic, an acclaimed author, and an energetic activist whose great cause is rights and freedoms in the digital sphere, but he's also increasingly an advocate for accountability and transparency in institutions, and for the quaint notion of the public trust. he's lawrence lessig. this is overheard.

>> lawrence lessig, welcome. >> thank you for having me. >> very nice to see you. >> it's great to see you. >> let me go broad with the first question here >> okay. >> and ask you whether the public good is a nonstarter conceptually these days? i mean obviously it's a real thing. it's a defined term of economics. we know there is such thing as a public good. but is it possible to work for the public good or to believe in the public good in a society like ours today? >> i actually think that the society has radically different views about what the public good is and that we shouldn't try to pretend that we're all the same. >> right. >> i think people have very different political commitments, and those differences are motivated by principles that are

different. i think the most we can hope for in a democracy is a process that we trust that we can have faith will deliver the victors a chance to govern >> right. >> and deliver the opposition the chance to kick out the victors. >> well, if it was the process we're hoping for then we're screwed. >> well, that may be true. >> right. >> but i think that's the thing we need to focus on. we need to give people a reason to believe that it's integrity in the system that's guiding the government one way or another, so if they have a reason to fight >> right. >> to change the government from being one or the other. >> you don't object to somebody having the diametrically opposed view of what the public is. public good is from your view. >> no. i think that's an obligation for me to try to persuade them. >> that's democracy. >> .about whether they're right or wrong >> right? >> that's democracy. >> right. and that's freedom. >> exactly. yeah. >> but the problem is that the process that we all employ to get us there is really not working or has not worked for some time. >> right. i mean the -- the fundamental problem in my view is >> yeah. >> the vast majority of americans -- we did a poll in january. 75 percent of americans believe money buys results in congress.

this is the most crassly framed question that we've ever asked: "does money buy results in congress?" and if you asked a little bit more subtly the numbers would be in the 80s and 90s. >> mm-hmm. take the most crass view, three quarters of americans believe that. what does that do? it leaves most of those three quarters, 90 percent of those three quarters to say why should i waste my >> so even if it's not true -- because of course the political scientists are all sort of antsy about whether they can actually prove that money is driving results, so forget that political science debate. even if it's not true, the mere fact we believe it leaves us to disengage from politics, leaving politics.. >> right. >> .to the crazy extremists on both the left and the right. >> so people don't vote, people don't organize in their communities. >> right. >> and people don't run for office to clean up a system that they think can't be cleaned up. >> right, exactly right. >> right. >> so, so we produce extraordinary pathy and cynicism about our system, and that feeds the corruption of the system. >> so the times that i or you or other people say, you know, there's fox world and there's msnbc world, and they only represent a few percent of the, on either side of the deal, but the

rest of us in the middle get shouted out by those people, shouted down by those people. it's really our fault, not their fault, because we're allowing the system to perpetuate or persist that we know is not working. >> i think that's right. >> yeah. >> now i think we. >> it's very depressing. >> it's depressing, but i think we need to be realistic about it. i mean, you, you've just said a point that most people don't realize. america is too polarized. the politically active class of america. >> right. >> .is polarized. >> right. >> but the vast majority of americans are right bell curve, a little bit to more to the left than most people think, but right bell curve in the middle, and they rationally want to have nothing to do with politics. >> right. >> because politics doesn't make sense, and it is corrupted by this kind of influence. >> fundamentally unappealing. >> that's exactly right. so they don't engage. >> but you underssand that, that, that becomes self fulfilling >> yeah. >> because if you don't engage then it never fixes itself, and if it doesn't fix itself then you don't engage. >> right. >> right. >> so, so this why. >> it's getting really depressing now. >> yeah, well, but i think there's reasons for hope, and it's in places that i think those of us on the left are least likely to look. you know, i think the reasons for hope are movements of ordinary citizens who are taking

seriously an obligation to try to take over the government and change it. >> sounds like the tea party. >> it is. >> yeah. >> it's also the current coffee party. >> right. >> the tea party is a much bigger. >> right. >> .presence. the coffee party is not as politically id. identified as the tea party, but both of them are grassroots movements that are trying to educate themselves and spread the word.. >> mm-hmm. >> .about the need for fundamental change and to bring it about. >> yeah. >> and the most astonishing thing of the last two years is that barack obama is elected as the reform candidate, but most americans think reform is now coming from the right. and i think there's a series of places where this relattvely small, you know it's 20 some percent of the american public who say that they're tea party members. >> yeah. >> i mean, it's huge 'cause it's a two-year-old party. >> right. >> but it's not, you know, the majority. but this freshman class has been able to push real reform into the system. they have values i don't agree with. >> right. >> and many of them i would disagree with, but the idea that they want to hold the government accountable and. >> right. >> .to change it i think is something that all of us are going to be into by the next. >> but the intellectual

critique of the tea party, and specifically of those people who took over congress and in texas where we sit today where a number of tea party candidates were elected to the texas legislature is campaigning is easy and governing is hard. >> that's right. >> it's easy to talk about cutting government. it's hard once you get in and discover how difficult it is to cut specific programs and you become the problem that you came to solve. >> absolutely. >> i remember rand paul getting elected in kentucky as a tea party candidate, and before he was even sworn in said, oh, you know, earmarks may not be that bad after all. >> yeah. yeah. but he in the end supported the ban. >> right. >> i think you're right and i think that thh tea party is wrong to attribute the problem to spending. >> right. >> i think they see spending as a proxy for government out of control, and i agree government's out of control, but it's not the spending, it's not just spending that there's a problem with. it's a regulation. it's the design of the way the government's. >> yeah.ú >> .in places and, you know, it's the idea that republicans support tariffs on sugar? >> right. >> what in the republican of protecting six domestic sugar manufacturers? >> right.

>> this is not because of an obsession with spending. it's because of an obsession with campaign funding, and that's campaign funding as it's developed with lobbyists in the middle supporting this addiction that candidates on both the left and the right have to campaign funding. >> right. >> that is the core problem here. thoreau said for every thousand hacking at the branches of evil there is one striking at the root. >> the root. right. >> we need a generation of root strikers. >> right. >> .from both the left and the right who begin to point to what is the problem here and do something about it. >> and you believe that there is a possibilitt of a coalition of people from the left and the right because as you know, professor, we're at a time in our society when we stop talking almost entirely to people who we don't agree with. >> because the business model doesn't support it. if you're fox news your media people tell you you got to stay focused on your right wing message. >> right. >> .or else you lose audience, and if you're -- >> and on the, an msnbc they're going to tell them the same thing. >> right. >> i mean we have a real problem because we've lost the age of broadcasting. >> yeah. >> .where people can actually speak broadly to america. >> right. >> right. in 1969, when spiro agnew attacked the news media, 50

percent of american families watched one of three news programs every single night. >> yeah. >> fifty percent. right? we have nothing close to that today. so this is a fundamental problem with how we get information out there. but i do believe >> yeah. >> because we've done extensive polling that on the right and the left people believe that money is at the core of the problem. >> yeah. >> and what we need is somebody who can begin to connect the dots for them, and convince people on the right. >> yeah. >> .that this is blocking them from getting what they want, and people on the left >> yeah. >> that this is blocking them from what they want, and so we might not have common ends, but we have a common enemy, and we have to focus attention on that enemy. >> right. ex, except, professor, i, nothing you're saying could be argued with i think, but there's an arms race, and the arms race requires unilateral disarmament to end. >> not necessarily. >> well, but if, but if, you know, the president, your former colleague at the university of chicago law school, the president of the united states is about to mount a $1 billion re-election campaign - unchecked. is a republican candidate, any republican candidate going to say i believe what

lawrence lessig and the other reformers say, we're going to stand down on raising the kind of money or taking the kind of money and therefore put ourselves at a terribly unfair competitive disadvantage? >> you know, i, i'm not sure it's a competitive disadvantage. i think if a candidate went out there and said i'm going to take no more than $100 from any citizen. >> yeah. >> and i'm not going to take any pac money. >> yeah. >> and i'm going to be free to lead, that's. >> oh, that was obama. >> i mean, i think that, you know, i was, i was a big supporter of barack obama. i, i loved who he was. i knew him when he wasn't a politician, but he is not delivering on this commitment. >> yeah. >> he absolutely has not. >> mm-hmm. >> but i think if a, you know, weirdly it's a nixon-goes-to-china like dynamic. if it's a republican who says i'm taking no more than a hundred. >> yeah. >> .from any citizen, and i'm not taking any corporate money, i'm not taking any pac money, i'm.in the age oo the internet. >> yeah. >> .that has a potential to. >> is self financing okay in that mix? >> i.yeah. i think it is. >> so a john huntsman, just to pick a name out of the

air, who former governor of utah could self finance several times over. if he were to say, because i have the resources to self-finance a campaign, and i'm going to allow the lessig plan to be my plan, would that be viewed by you as a, as a sufficient reform? >> well, i think that somebody like that should say it's a terrible political system where only extremely rich people can afford to run. >> right. >> so i don't accept the system where only very rich people can run. >> right. >> but the one thing we know about huntsman or bloomberg or any of these people is that nobody bought them. they bought themselves. >> right. >> right? so, so to the extent people are cynical because they think that politicians say one thing but they're actually marionettes being controlled by somebody else. >> right. >> that's not true for the self-funded candidate. >> so you believe the huntsmans and the bloombergs of the world are in a position to say we're not going to take corporate money, we're not going to take pac money, and as a result we're not going to be beholden to anybody, and you believe it? >> well, i don't know if i would believe it about anybody. >> yeah. >> and i think it's much more credible if it's not somebody who has that kind of personal resources who makes this kind of commitment. >> mm-hmm. >> but i think the challenge is if we had that kind of candidate and we saw that

candidate credibly making every issue about the money and the rest of us did our work to convince the rest of america that we need to understand this is the message.. >> mm-hmm. >> .that has to be pushed whether i think there's a chance that could actually work this time, and a billion dollars by barack obama, you know, looks very cheap compared to that kind of authentic message. >> is, is this the big issue in the next election or the next series of elections - money and politics? we think that there's the war, two wars now going on, the possibility of a third war or third military involvement overseas given all the unrest happening in the middle east. we've got, you know, economic problems at home, jobs and everything else, but you would say money and politics would be the thing that you focus on? >> well, i would say, you know, you poll americans, money and politics, and ask them what's the most important issue, money and politics is not in the top 10. >> right. >> easily. >> yeah. >> but, i think that in fact if you want to understand a huge chunk of the craziness inside our government this is the issue. >> mm-hmm. >> and so making people

the dots to what they think about and what they see in our government. >> yeah. >> this could be made the critical issue. and, and i think we're only going to get a play, get to a place where we have confidence in our government to do, to make very serious decisions when we can actually trust the government. >> yeah. >> and we don't trust this government. >> yeah. >> you know, the last gallup poll found 11 percent of the american public trusted congress. eleven percent. >> right. >> right. there were more people. >> it's a historic low, right? >> yeah, more people believed in king george, iii at the time of the revolution than who believe in our congress today. right? so this institution is institutionally. %->> .bankrupt. >> yeah. >> and what we have to recognize is in the face of this bankruptcy what do we do to fix it? now, you know, there're, there are very serious problems, but i think of this like, you know, i think of alcoholism, right? so you can think of the alcoholic who could be losing his wife, he could be losing his liver, he could be losing his job. those are the most important problems a person can face. but what we know is that that alcoholic will not solve any of those problems until he deals with his alcoholism first. >> right. >> and that's the same thing with this republic. >> hack at the root.

>> hack at the root. >> right. >> what about public financing of campaigns which has come up before, free up people from having to raise monee all the time? >> well, my own view is. >> yeah. >> .there is a version of, of small dollar funded campaigns that we need. so my view would be, you know, for example, every single american contributes at least 50 dollars to the federal treasury. not necessarily through income taxes but through cigarette taxes or whatever. so at least 50 dollars. so let's say take that 50 dollars, that first 50 dollars, and turn it into a democracy voucher so every voter gets to allocate that 50 dollars to whatever congressional candidate he or she wants. and then, in addition to that, candidates who walk into this system can accept up to 100 dollars in real money contributions.. >> right. >> .from any citizen. so $50 from every voter is $6-billion. the total amount raised and spent in the 2008 congressional election was $1.4-billion. >> plenty. plenty of money. >> so $6-billion is plenty of money. >> right. >> under that system two things are true: number one, nobody could believe money was buying results. right? there's money in the system. >> right. >> .but it's not money from

a particular set of interests that's distooting it. okay, number one. number two the standard republican criticism of public funding is that my money is being used to support speech i don't believe in. >> right. >> not true about the system. your money is being used to support speech you do believe in, and my money is being used to support speech i believe in. >> so that's a system that i think produces a kind of politics, and we've seen versions of this in three states: arizona, whhre the tea party uses this system to fund much of their success. >> mm-hmm. >> maine and connecticut, that produces legislatures where the vast majority of members in those legislatures are not there because of the money, and that begins to build the kind of trust we need for the system to work. >> you, you mentioned trust and not having, problems not having sufficient trust in government. that, that's an issue for you as well. you have started to develop, evolve a critique of trust in institutions. >> right. >> and you mentioned the sugar subsidies. that's one example. you sound like michael pollan talking about how the obesity among children in this country. >> right. >> .can be tied directly back to the mistrust we

should have of institutions advocating in our interest as opposed to. >> right. >> .their own. >> right. >> is that a solvable problem? because it sounds very dire, and it's not something in any case that can be fixed quickly. >> no. that's right. >> yes. >> and so i run a center at harvard which is focusing on what we call institutional %->> yep.n. >> which is basically influences. they're legal. ú%'re not talking about bribery. >> yeah. >> we're talking about legal influences that undermine the effectiveness or public trust of an institution. >> right. >> so i've learned a lot from michael pollan in exactly that dynamic. >> yeah. >> but think about doctors, you know, taking money from drug companies and then recommending vaccines. right? >> yeah. >> many americans, many parents listen to that and say i don't trust you when you tell me i should vaccinate my kids. >> yeah. >> i'm not going to vaccinate my kid. >> right. >> and so increasingly parents are not vaccinating their kids against like measles, nd we're seeing the outbreak of measles, a really deadly disease, for the first time.. >> right. >> .in generations because of this cynicism. >> born of mistrust. >> yeah, born of mistrust. >> yep. >> and so i look at it and say look, we need to be able to structure our institutions so that people trust them, and we can do that.

like that's what the framers of our constitution were obsessed with. how do we build a constitutional regime that can have the right kind of independence and the right kind of dependence so that people can trust that this is doing what it says it's doing. >> yeah. and it's private institutions and public institutions. >> of course. it's all. >> it's both. >> ii's all. >> it's government, but it's also business. >> right. right. private. we depend upon private institutions in extremely important areas of our life, but we need to be able to trust them. >> yeah. >> and trust is, depends upon how people understand the relations and incentives. we've, we've tested this. we've done psychological experiments where we've just suggested financial connections in the context of politics, in the context of medicine, in the context of consumer products, and we can see how the mere suggestion that money might be affecting the decision throws those people over the cliff. >> yeah. >> now they're more trusting of doctors than they are of politicians, but i think pol. doctors need to look at this and say we don't want to become like politicians. >> and this is also like the wall street, the whole of.the inside job, winning the oscar documentary is kind of a >> it was fantastic. >> it's kind of a validation >> fantastic. >> of the idea that, you know, we know what's going on out there.

we're not going to let you guys get away with this. >> right. >> although in, in effect we have. >> yeah. i mean that was of course, charlie ferguson's acceptance speech, you know. this, this statute doesn't mean anything. none of these guys have gone to jail. but i think it's a more complicated story because. >> yeah. >> .you know, the standard way we like to talk about this is we've got a bunch of criminals out there, and i don't doubt that there are criminals. there are more, there's more than just one madoff. >> yeah. >> .in this story, but it's not criminals. these are good people who are living inside of a system that drives them to do the wrong thing, and, and what they need to do is take responsibility for their system, and to stand up and fix the system. even though they're not, you know, criminals themselves, they have to realize the system is driving us to destruction. >> and yet it's legal, i mean the, the.. >> it's totally legal. >> it's the old molly ivan's line maybe quoting somebody else, you know, the crime is not what's illegal, it's what's legal. >> it's legal. right. >> right. >> right. right. well, we have about 10 minutes left. i want to go to illegal and legal in the realm of copyright.

>> yeah. >> .which is obviously, that was your shtick for a long time, and still is to a great degree. >> mm-hmm. >> you're the guy who has a point of view, whether it was through creative commons or the work you did out at stanford, the advocating you've done on behalf of, i, i think the, that sonny bono extension of the copyright law and your arguments against that were just magnificent and interesting. can you in a sort of short form articulate what you think the rest of us should think about this stuff, about. >> yeah. >> .copyright, intellectual property and all that sort of stuff? >> yes, so, so there are a lot of copyright abolitionists out there. >> yeah. >> .who think that copyright was for the 19th and 20th century. we should get rid of it. >> right. >> i'm not one of those. i think copyright is an essential part of a rich culture. >> yeah. >> and i don't mean rich financially. i mean rich as in diverse. >> vibrant. yeah. >> right. artists have got to have a way to fund their creativity >> right. >> and if they don't they become just patrons to big companies, and that's completely boring. so i think copyright is isential. copyright used to have one problem to solve: how do i give incentives to artists to create great new work? >> mm-hmm. >> now copyright has two problems to solve, how do we give incentives to artists, but how do we leave enough freedom for amateurs to be able to create and share

work consistent with the law. >> right. >> right? so you look at the last five years, and the enormous creativity that's evinced on you tube or on blogs or all this sort of stuff by people who are creating, not for money, but they're just creating because they love to create. >> right. >> the original sense of what the word 'amateur' means. and we've got to look at that and say we need a system that can ratify and encourage that. we need to be able to teach that in our schools without the general counsel for the local school district saying oh, no, no, no, there's too much, there's too much risk of copyright infringement lawsuits if we allow kids to remix videos and post them on youtube. >> yeah. >> we need to be able to make this kind of cultural expression as normal as writing is. >> mm-hmm. >> and the only way to do that is to update copyright law to more properly focus on the thing it needs to worry about to create artists. >> which is? >> .which is to make sure when an artist's work is commercially exploited >> yeah. >> the artist profits from it. >> so it's about protection. >> it's about protection. >> a word i didn't hear earlier in the description of what the purpose of copyright is.

>> well, it -- well, protection actually might be a little bit too fuzzy. i, i want to make sure the system is giving compensation where it's supposed to be giving compensation. >> mm-hmm. >> so, you know, we've been waging a war for example over the last 10 years against peer to peer file sharing of illegal copyright material. >> we, the royal we. not you personally. >> not me personally. they haven't allowed me to be a part of that war, but right. >> yeah. >> we as in the nation, and i don't support people file sharing, filing other people's copyright. my books have repeatedly say. >> yeah. >> .said don't do this. okay. but we've been waging war against it unsuccessfully for ten years. it's, you know, our vietnam. >> right. >> it's our cultural vietnam. now, what do you do when you wage an unsuccessful war? well, one strategy is let's wage an ever more effective war against the enemy. like's like more bombs >> right. >> more my view is when a war fails you have to sue for peace and find a different way to achieve your objectives, and there's obvious different ways that we've been talking about for a decade. so, you know, compulsory licensing schemes that would allow us to figure out how much harm has been done by this and to allocate money

that we've collected from the licensing scheme to artists to compensate for that harm. if we had done that 10 years ago. >> yeah. >> .artists would have had more money, businesses would have been able to innovate effectively because they would have had clear set of rules. but the most important thing to me is we wouldn't have a generation of kids who have been raised as criminals because what we've told our kids is the stuff that they do naturally is criminal. >> right. >> and they are. >> like some of them have actually been. >> .prosecuted. absolutely. >> they've attempted to prosecute them. right? >> of course, of course. >> i mean literal criminal. >> so they're told they're criminal. they think to themselves, okay, i'm a criminal, and they live life as a criminal, and that is, in my view, corrosive. right? >> yeah. >> i mean, i was a little bit of a goody two shoes as in high school, i'll admit. i wasn't such an extreme one, but, you know when i was in high school i could do all the normal things that high school kids did and very rarely break the law. it's not true of our kids today. >> but, but the question i'd have, and others would have for you is, is the problem the law, or is the problem the crime? >> the problem is the law. >> in the early part of the

last, of this last century the law was that property rights extended from the ground to the skies. >> right. >> and when you crossed over in the air you were trespassing just as much as if you crossed on the ground. >> .on the ground. right. >> then a technology called the airplane was invented. >> yeah. >> and airplanes started flying across the air, and in certain cases people on the ground claimed that's a trespass on my property. you haven't asked permission to enter in my property. and so a case went to the supreme court when some chicken farmers, you know, were complaining because the air force was landing planes right next to.over their property and causing the chickens to fly into the wall and kill themselves. it was a serious problem for these farmers. >> yeah. >> but they said you're violating my property rights and i want you to stop, and the supreme court, as common sense repels at the idea that what are we're going to do is now stop airplane travel because these old systems of property rights block it. >> right. >> what we're going to do is update the system for property rights, and that's what's going to happen with copyright, it's not that we need to eliminate property. it's not that we need to eliminate copyright. we need to look at the way that copyright interacts

with our technology and update it so it makes sense. >> right. >> in the old days, you know, you could go through your whole day never once triggering copyright law because, you know, when you're working with a book for example, you read a book. that's not a fair use of the book. that's a free use of the book. >> right. >> you have whatever it is to copy. >> right. >> i give you a book, i haven't produced a copy. there's no triggering of copyright law. but in digital space, every time you do anything you produce a copy, which means every time you do anything you trigger the application of copyright law. so we go from a world where most of what consumers do is completely invisible to copyright law to a world where everything every consumer does every single moment of the time it is in the internet triggers copyright law. copyright law was not written to regulate ordinary citizens in their ordinary consumption of culture. >> right. >> that's not what it was for. and so we just need to update it so it focuses on the thing it needs to focus on to guarantee artists get the money they need to be creative. >> so journalists who claim that an aggregation website, huffington post, say, takes five paragraphs of a story that they publish on, in, in

their world and reprint it there without permission, and then that's a violation of copyright. in the new lessig world how would that be resolved? >> it's a hard question. >> yeah. >> because huffington post is a successful commercial venture. >> right. >> they depend on something called fair use for a lot of their. they have agreements and a whole bunch of -- >> right. >> but fair use, which is.the supreme court said a fundamental first amendment requirement in copyright law. fair use says i'm allowed to use certain things. >> a, a certain amount. >> yeah. >> yeah. >> certain amount without permission. >> yeah. >> and that means even if you say i can't use it i'm allowed to use it. so, so, i think fair use is an essential part to any system of copyright, and i think we depend upon it in all sorts of contexts and need to. >> yeah. this is a hard thing to fix though, right? >> you know. >> i mean i'm not saying it's the wrong thing to say, but i'm acknowledging that it's an uphill battle. >> you know, i spent many, many years fighting this issue, and what i saw is parents got it. >> yep. >> teachers got it, business got it, artists got it. the only people who didn't get it were congressmen.

>> come, come back to the first part of the conversation. >> yeah. did they not get it because they're idiots? >> yeah, yeah. >> no. they didn't get it because there's no money on this side of the issue. >> right. >> so that's what led me to say okay we've got to go focus on this money issue. >> yeah. >> .if we're ever going to deal sensibly with that issue. so i don't think the copyright issue is hard. no. i think we could fix that if we sat down seriously with all parties at a table in a relatively short period of time. there're some hard questions, but not many. >> right. >> if -- but we're never going to be allowed to do that, because all the money in the world is into preserving the war against our kids and fighting that ever more viciously so that some 19th and 20th century system of business continues in the 21st. >> i can't tell if i'm optimistic or pessimistic after talking to you. i, i suspect that happens occasionally. >> yeah. >> but i, but i appreciate the fact that you gave us the time to be here. we're out of time. fascinating stuff. good luck with all of it. >> thank you. >> thank you for fighting on all of our behalves. i guess that's the most important thing i could say. >> thank you very much. >> so lawrence lessig, good to see you. >> yeah. >> thank you. [applause]

>> funding for overheard with evan smith is provided in part by hillco partners, texas government affairs consultancy and its global health care consulting business unit, hillco health. and by the mattson mchail foundation in support of public television. and also by mfi foundation, improving the quality of life within our community. and also by the alice clayburg reynolds foundation and viewers like you. thank you.