As someone who has often cheered Lessig's opposition to the status quo, I am greatly puzzled by this piece.

Did Zuckerberg breach his contract? Maybe, for which the damages are more like $650, not $65 million. Did he steal a trade secret? Absolutely not. Did he steal any other “property”? Absolutely not—the code for Facebook was his, and the “idea” of a social network is not a patent. It wasn’t justice that gave the twins $65 million; it was the fear of a random and inefficient system of law.

If we take Lessig's factual assertions about the originality of the code as face value, it still seems as if Zuckerberg ripped off a lot of ideas that were shared in confidence, and repeatedly deceived the originators of those ideas into thinking that he was working diligently on their behalf.

I can't understand Lessig's criticism of the system as stated. It is not as if these ideas were found by Zuckerberg on a Usenet forum or overheard on the bus, and the Winkelvoss twins then went after him with an army of copyright lawyers; some sort of proposal was followed by some sort of agreement, and Zuckerberg was given access to the fundamentals of a business plan and the existing work product of two other programmers. Perhaps Zuckerberg had already had a vision for Facebook and simply accelerated his schedule in order to get it to market first; but if so, one wonders why he was wasting time on taking meetings for programming jobs.

What does Lessig consider the twins should have done instead? Would he be on their side if they had drafted a proper contract, NDAs, and stamped everything they ever put on paper with the words 'Property of ConnectU, hands off'? Or is it that he doesn't consider their idea sufficiently distinctive to be protectable by the legal system? Because he never articulates quite what he means, I'm left with the impression that Lessig considers the commons to extend to any exchange of an incomplete or unrealized idea, without regard for the context in which that exchange takes place. By this interpretation, the notion of a 'gentleman's agreement' is obsolete, what you own is limited to what you can control, and any lapse in total secrecy is your loss to bear.

Indeed, I saw this view expressed repeatedly during the fuss over the iPhone prototype earlier this year. Many considered the finder of the device the new owner, regardless of his legal obligations and his knowledge of exactly who had lost it. The value the finder, and subsequently Gizmodo, sought to derive from their possession of it stemmed from the very confidentiality and general unavailability of such prototypes. But many considered possession to be fully equivalent to ownership (on a moral if not a legal level), conferring the right to exploit what one possessed to the fullest extent possible. Quite why legal technicalities of a search warrant issued shortly afterwards should have offended their sensibilities so greatly, I can't say - they certainly weren't bothered by any statutory considerations, so it must have been to do with some inexcusable lapse of style by the police.

If we are not bound to respect each other's property or confidence by anything less than our full contractual agreement, does Lessig then see progress as the outcome of an arms race between zero-sum competitors? Why should I not steal his car if he steps out of it and leaves his keys in the ignition, and place the blame upon 'the system' if Lessig summons a policeman to his aid? The value of his car stems from its current configuration as a vehicle, and Lessig is arguing that designs do not belong to anyone in particular. the materials which make up the car - some steel, rubber and various kinds of plastic - are mere commodities, and at most I have laid hands upon some junk which just happens to be organized into the shape of a vehicle at present. If I drive it away and wrap it around a tree, what has Lessig lost? With enough time and ingenuity, he could reassemble the wreckage into a working automobile: others have done no less, so why does he feel entitled to have his idea of a car actualized at someone else's expense, just because it existed independently in the recent past?

You don’t even have to possess Zuckerberg’s technical genius to develop your own idea for the Internet today. Websites across the developing world deliver high quality coding to complement the very best ideas from anywhere.

Unless, of course, they decide to launch against you as a competitor instead, in which case you had best resign yourself to basking in the reflections of their glory.

Given the midnight byline on the post, I cannot help wondering if this was written with the assistance of a post-premiere cocktail. I hardly feel he would ignore such gaping holes in any counter-argument.