Lessig

ESR has a wonderful analysis of the latest Halloween document from (some mole in) Msft. Eric rightly emphasizes substantial good news. Yet though this may be just my nature, I think there is more here to be worried about than the good news suggests. Bottom line: Regardless of our OSS/FSF loyalties, we need to work hard to de-FUDify GPL.

Ted's latest (and his patience with me is wearing, so perhaps sadly, his last), makes a passionate argument against my source code escrow idea, based on the nature of software and the creativity that builds it. I realize I must have somewhere inspired this debate about "nature." I renounce it. No more talk about nature, or the philosophy of creativity. My argument is simple (maybe simplistic, maybe naive) pragmatism.

Aaron's got a reformulation of my escrow-the-code argument which is cleaner, tighter, and more persuasive. We've asked to have him re-present my argument in Eldred, but apparently one must be over 15 to argue in the Supreme Court. (Oops, today's his birthday. We'll have to ask again...)

At a Tokyo conference on Intellectual Property Rights of Software and Open Source (hey, I didn't pick the title), Msft General Counsel Brad Smith makes a strong and repeated defense of "neutrality" in the "software ecosystem." I'm the other half of the presentation, but you can skip my part (especially because my hair is weird and I mumbled alot).

The lack of broadband access at hotels drives me nuts. It was bad enough when you had to carry a screw driver and alligator clips. But it's been years since cheap and effective broadband technologies should have been deployed in major hotels. So it was a pleasant surprise when I received spam about this offer from W Hotels -- offering "free" Broadband Internet Access plus telephone calls -- for stupid people, apparently.

Doug Isenberg, whose GigiLaw.com and its companion Guide are a great resource, sent along some more examples of awful wireless marketing.

I'm in Japan for the fall, so I was eager to see MovieLink come online (not much on Japanese tv for a language-idiot like myself). As I was told by someone from the other side, MovieLink was intended to remove the "excuse" people had for "stealing" movies online -- once a "cheap, fast system" was offered, there was no good reason not to pay. So does that mean that because non-Americans, and non-MicrosoftOS users don't have a way to access MovieLink, they have an excuse to "steal"?

This should be a general rule: If you don't make it cross-platform compatible, you're not welcome on the Internet.

So there's this amazing site (for opera fans at least) called MetManiac, which before the lawyers found it, collected lists of Met opera performances from the beginning of the Met. Non-commercial, pure hobby, an extraordinary historical resource, this was the passion of a fan. If you follow the link, though, you'll see the Met lawyers have demanded the site be shut down. (Shhh, but if you follow Brewster's link, you can see what the page was. Don't tell the lawyers, however, as they'll shut that down too.)

Can anyone explain what sense it makes that this fan site, which collects historical facts about an important part of our culture, can be banned? I know the lawyers say "the law makes us do it" -- that trademark law, etc., requires that they police the way other people use their name. But what possible sense does such a law make. And at a time when opera around the world is struggling for resources to build an audience, what possible sense does it make to begin to attack your fans?

Here's a company to watch: eAccess, Japan, building the fastest growing aDSL network in the world. They now offer 12 mbs (yes, I mean 12 mps) for $26/m, service within 7 days. And to celebrate their amazing success, on 12/12, they go public.

Talk to the extraordinary president of eAccess, Sachio Semmoto, and he'll tell you the key to eAccess's success: That Japan learned from the United States that access to copper had to be "open." Open access meant new competition; competition has driven prices down, speed up.

It's an amazing thing, competition. Apparently it doesn't work in America, though. Now that the Japanese have profited from the American lesson on regulation, the Americans are retreating. The FCC is moving as quickly as it can to undo open access requirements.

Insanely destructive problems with my machine here in Japan, so I apologize for the silence and unanswered emails. To my pleasant surprise, however, I discover that my Powerbook G4 has a world wide warranty. So after finding a number of the Apple Japan website, I called to get support. The Apple Store helpfully gave me an English speaking "toll free" number to call. At this point, of course, I didn't care squat about the toll; I wanted a voice that could fix the problem. I dialed the number. Couldn't connect. Over and over again, no luck. So I called the Apple Store back. "Are you trying to call this number from a business or university?" "Yes," I told her. "You can't call this number from most businesses or universities. You'll have to go to a payphone on the street and call from there." "Isn't there another number, maybe a non-toll free number I could call?" "No, only the toll-free number. We don't want to charge for support."

An email this morning from John Patterson of MetManiac reporting that he met with Met management and they have reached an agreement to allow MetManiac to return. Mr. Volpe of the Met is responsible for this sanity apparently. It is a nice practice to thank people for their sanity. Insanity reported here.

The Right on Eldred. See here.

In Eldred v. Ashcroft, we challenged the 1998 Sonny Bono Copyright Term Extension Act. During oral argument, the Court asked whether our rule would affect the 1976 Act's extension. Though this issue had not been briefed, we indicated that it would, but that the Court's own caselaw gave it a way to strike the 1998 Act without striking the 1976 Act.

Justice Bryer in particular was concerned about the effect on contracts entered into in reliance on the 1976 Act. His view seemed to be that there would be "chaos" if those contracts were invalidated.

Jason Schultz of Fish and Richardson and Deirdre Mulligan of the Berkeley Center for Law and Technology (both of whom worked on a great amicus brief in the case) have now looked at the numbers. Their work is great, and the numbers surprising. See the chart on books here and the brief analysis here. Bottom line: a surprisingly small amount of work would be affected.

a great article about one of the most important reasons that this side will win.

Declan has a nice article which cozies up a bit more to the idea of Geeks (and geeks-wanna-bes, like me) getting more involved in the political process. That's progress from where he was last summer. But I was surprised to read his criticism this morning of Amnesty International, which has criticized those who provide technology to enable Chinese censorship. Declan thinks it better for AI to "focus its otherwise good work on the real culprits: The Chinese government." Apparently, while Geeks are unlikely to persuade Washington to call off the war that is killing IT, AI is likely to persuade China to reform civil rights.

In an otherwise great piece for CNET (not run on his list), Declan reported last week that Judge Posner expressed skepticism about expanding IP rights, and that he "praised [me] for challenging the CTEA." Declan's a careful reporter, but there is exactly zero chance that Posner said that. Whatever his views about the economic merits of the Sonny Bono Act, federal judges (and especially this seasoned and careful federal judge) don't go around expressing personal views about the merits of pending lawsuits.