Lessig

A kind-hearted email and a nice analysis of spam have given me an idea:

First the analysis: Philip Jacob has a great piece about spam and RBLs. The essay not only identifies the many problems with RBLs, but it nicely maps a mix of strategies that could be considered in their place. But, alas, missing from the list is one I've pushed: A law requiring simple labeling, and a bounty for anyone who tracks down spammers violating the law.

Then I got an email from a kind soul warning me about my work—"do you know how powerful your enemies are?" this person asked. No, I thought, I don't, but let's see. If I've got such powerful enemies, then I've got a good way to do some good.

Here goes: So (a) if a law like the one I propose is passed on a national level, and (b) it does not substantially reduce the level of spam, then (c) I will resign my job. I get to decide whether (a) is true; Declan can decide whether (b) is true. If (a) and (b) are both true, then I'll do (c) at the end of the following academic year.

So: Is there anyone else advancing a spam solution who would offer this kind of warranty?

So I've been telling this story about the birth of Mickey Mouse for some time now. See, e.g., my OSCON speech. The story goes like this: Walt Disney was a great creator in the tradition of great creativity: his creativity was to rip, mix, and burn popular culture. Even Mickey Mouse, who was born as Steamboat Willie (released in 1928), was a rip, mix, and burn take-off on Buster Keaton's Steamboat Bill (released in 1928).

But I hadn't realized just how true that was until I opened my very cool set of Disney "Treasures"—a special DVD release of the early Black and White Mickey Mouse films that Disney is now selling (comes in a cool tin case, with a serial number pressed into the tin). The DVD is a great collection of the early cartoons, with some "bonus" features including the script for Steamboat Willie. Here's a screen shot of the first page of the script. Notice the direction from Walt: "Orchestra starts playing opening verses of 'Steamboat Bill.'" Try doing a cartoon take-off of one of Disney, Inc.'s latest films with an opening that copies the music, and see how far your Walt Empire gets.

So Peter Wayner reports that after he put his book, Free for All, under a Creative Commons license, the price for used books at Amazon has gone up by 40%. RIAA (or better, artists the RIAA is supposed to represent): Take note.

There's a very interesting article in the Times (registration blah blah blah) about a new push in Europe to increase copyright terms. Let's remember the sequence here. Germany increased its terms to compensate for WWII. The EU then increased its terms to match Germany. The US then increased its terms to "harmonize" with the EU. That was the Sonny Bono Act. But of course, the "harmony" of the Sonny Bono Act was like some of the worst of the Bono and Cher acts -- disharmony. (For a chart showing how the Sonny Bono Act actually increased disharmony between US and EU terms, see Dennis Karjala's page). So to respond to the disharmony caused by the Sonny Bono Act, now Europe is calling for another increase in their term. Japan too is doing the same.

Jason Schultz's work shows clearly what we've been arguing for a very long time: Longer terms lock up much more than it could ever benefit. This spiral of increasing terms will mean that less will be available, not more. Obviously, there is a world of work to do before this message is understood.

Matt Haughey is one of the creators who helped make Creative Commons happen. He's built an amazingly cool site called ticketstubs that enables people to share stories around events.

Bill Fitler has put together an interesting page of CodeLaws, by which he means technology designed to implement some sort of policy. The list is an important step is mapping all the ways in which behavior gets regulated. He's eager (as am I) for any input to make the list more complete. His weblog is here.

I had never looked this up, but thanks to "thumbtacks" for sending this. If the Sonny Bono Act is unconstitutional, then "Happy Birthday!" will be free!

Joi makes a great point about the character of different spam control methods. While in the narrow sense, this is not an end-to-end issue (as Saltzer, Clark and Reed framed it), in a general sense, spam solutions can be divided into those that respect end-to-end values, and those that don't. The label+bounty solution (which has a nice discussion on /. and which I'd lose my job over if it doesn't work), I'm happy to acknowledge, is end-to-end respectful.

The Nikkei is reporting today that the government will propose a law to "enhance copyright holder protection." You can't read the story without buying a trial subscription (aka, that's bad enough). But worse is the substance of what the Nikkei reports. The story reports what has been reported often before: That the legislation will increase copyright terms for movies and games from 50 to 70 years (again invoking the bogus harmonization argument). But the most amazing proposed change is this:

"Plaintiffs in lawsuits defending their copyrights often have difficulty submitting evidence that offenders have infringed upon their rights. So the government aims to shift the burden of proof to the defendants, requiring them to prove that they have produced and marketed their products without violating the plaintiffs' rights."

That's a quote from the story, and as the story has a bunch of factual mistakes in it, I can't be sure it is accurate. But if true, it means that in Japan, you're guilty until proven innocent.

I'll be reviewing the draft law as soon as I can, and reporting more. But the bottom line is the same: IP extremism continues unabated. There's so much to praise in this amazing country. It is sad to see them following the extremists.

So in 1998, as a Christmas present to my parents, I promised to give them broadband service when it became available. They live just outside Hilton Head, SC. No San Francisco, no doubt (where broadband at 1.5 mbs is available at about $50 a month), but still, no backwater.

For the first time this year, service is getting close. A company called Hargray promises 768kbs for the amazing low price of $100 a month. No cable service available from AT&T. And no service available from anyone in the 1.5 mbs range.

Meanwhile, to repeat again: Here in Japan, they are selling 100 mbs for $50/month, 12 mbs for $25.

We've posted a page on the Emily Somma Peter Pan case with a FAQ about the case. There's a link at the end of the FAQ with a suggestion for more questions. I'd be grateful for any suggestions, about new questions or old.

I've been a subscriber to POBOX.COM for many years now. It has solved many email headaches and is a great service that deserves some pro bono praise. So click more for the praise (and obviously, I've got no financial connection (except my annual bill) to this great company at all).

Bruce Perens has extraordinarily great news about a deal he's struck with Prentice Hall to permit "open source" publication of a series of books. It was no surprise that Tim O'Reilly got the value of adding work to the commons (as O'Reilly press has with a bunch of titles donated to the public domain and a bunch of content to be licensed under a CC license: read here). But it is a real testament to Bruce's skill that he convinced Prentice Hall. Congratulations. I only hope we can help make the licenses part of the semantic web.

The ever-sensible (save about his ALL CAPS TENDENCIES) InstaPundit has taken some heat for his very sensible link to Virginia "a really great 'Future' book" Postrel's post about John Edwards. Glenn echoed Virginia echoing John Hood that Edwards being a trial-lawyer was not a bad thing.

But Glenn, et al., are absolutely right. Whatever people say to pollsters, Edwards will build a wealth of capital by telling the story of his clients. Say Erin Brockovich three times and then tell me Americans hate trial lawyers.

The real challenge for Edwards will be the "media filter." "A friend" (who doesn't want his/her name here) writes,

"Fitness for office, gravitas, experience, these things matter little to the men and women trapped on a bus covering these guys for the next two years. Being a good guy, not being a phony, they matter more to the working press. It's hard to overstate the effect of Bush's genial personality and Gore's cloying, arrogant style. The worst thing you can be is a phony, in the eyes of the press. I fear that Edwards is going to be made to look like a phony."

Forget the liberal bias of the press. Who's writing about the frat-boy bias?

As cable companies continue to increase the cost of broadband service, and as telcom monopolies are strengthened by changes in FCC policy, it is now absolutely clear what the broadband endgame will be in the US: wireless. Think of a city where every single street light is a node in a mesh (for an example, see meshnetworks), and thus where the cloud of the internet sits on the street like the fog in San Francisco. For almost nothing, cities could provide IP light, as cities provide street lights. Neutral, end-to-end, fast, and cheap. (Apologies for this uncharacteristically optimistic post. Just a preview of the moot.)

Matt wonders what one does with 100 mbs. Great question. In Korea, where, as I was told, copyright laws are "immature," they are free to stream TV to their computers. That uses chunks of bandwidth, and creates great new competition for video. (If only we (or Canada) could be "immature" again.)

But remember Mr. Gates' thought about how much memory a PC would need: 640k. Give us bandwidth, and we'll find a way to use it.

This is a great story of a citizen standing up for his rights against petty fascism. Didn't hurt that he's an amazing and famous comedian. Don't try this without being famous.

In a second, important defeat for the RIAA, and DMCA-defender types, Johansen was acquitted by a Norwegian court. And as the EFF is nicely publicizing, the principles on which this court in Norway decided the case might be familiar to those who remember our own constitutional tradition. As the chief judge said in reading the verdict, "no one could be convicted of breaking into their own property" and "consumers have rights to legally obtained DVD films 'even if the films are played in a different way than the makers had foreseen." The freedom to tinker in Norway is real. So too should it be so here.

I've been hiding away in Japan working on a book that's tentatively titled "Free Culture"--"free" as in the verb. I'd be grateful for any help with two questions that are continued below.

So I wandered over to Senator Edwards' website, and was impressed to see an online donation tool. So I tried it out. It told me my card was declined. I tried another card. It too was declined. Both cards are fine, so I figured there must be a problem with the routine. And so I searched the site for an email addres--any email address at all--to tell them something is wrong with the site. Result? None. Click "Contact Us" and you're given a mailing address in North Carolina and a telephone number.

Oh well. Still waiting for the internet candidate.

Cory Doctorow's brilliant novel, Down and Out in the Magic Kingdom, is out today. Buy it early and often. Cory's book is also the very first to be offered initially both for sale and under a CreativeCommons license. That means you can also download it for free. As Cory describes it,

"The entire text of my novel is available as a free download in a variety of standards-defined formats. No crappy DRM, no teasers, just the whole damned book."

But as he (and I) expect, once you start the book, you'll see you want it in its bound form. So again, you might as well buy it too.

Cory has been defending the rights of creators at EFF for sometime now. With this experiment, he is putting his money where his heart is. I've had enormous respect for him for a very long time, but I'm quickly discovering new heights of respect.

Congratulations, Cory, on a great novel, made available to the world freely — and with great CC metadata to boot!

Check out the CC Weblog later today for an interview with Cory about the novel, and his ideas about licensing.

Thanks to everyone who responded to my request yesterday. My inbox and comment box are now deluged with fantastic ideas, and I'm now way behind in responding. Please don't stop with the ideas. I'll catch up in the replies soon. But thank you. I am astonished by the generosity.

Aaron once wondered what he should do with his life. Option 4 was answer email (3069 in his inbox). This is a worthy discipline for anyone, though we need a norm of slack for email. I'd love a script that posted the number of emails in my inbox and the average time to reply just so I don't inadvertently insult someone who's used to conversing with Mitch.

More soon, but thanks again for the help. And to pass the time quickly, I recommend Cory's book.

The Supreme Court has rejected our challenge to the Sonny Bono Law.

There were three opinions. The majority was written by Justice Ginsburg. Justice
Stevens wrote a dissent, as did Justice Breyer.

So I've got to go get onto a plane to go to my least favorite city (DC). My inbox is filling with kind emails from friends. Also with a few of a different flavor. It's my nature to identify most closely with those of the different flavor. David Gossett at the law firm of Mayer Brown wrote Declan, "Larry lost Eldred, 7-2." Yes, no matter what is said, that is how I will always view this case. The constitutional question is not even close. To have failed to get the Court to see it is my failing.

It has often been said that movements gain by losing in the Supreme Court. Some feminists say it would have been better to lose Roe, because that would have built a movement in response. I have often wondered whether it would ever be possible to lose a case and yet smell victory in the defeat. I'm not yet convinced it's possible. But if there is any good that might come from my loss, let it be the anger and passion that now gets to swell against the unchecked power that the Supreme Court has said Congress has. When the Free Software Foundation, Intel, Phillis Schlafly, Milton Friedman, Ronald Coase, Kenneth Arrow, Brewster Kahle, and hundreds of creators and innovators all stand on one side saying, "this makes no sense," then it makes no sense. Let that be enough to move people to do something about it. Our courts will not.

I will always be grateful to Eric Eldred, and our other plaintiffs, for putting his faith in this case. I will always regret not being able to meet that faith with the success it deserves.

What the Framers of our constitution did is not enough. We must do more.

It is the middle of the night. Sleep is awol, scared off by this question that won’t stop pestering me: Is there a principle here? Is there a way to read these opinions as consistent with a principle? (Updated)

My inbox is a testament to the kindness of strangers. Thank you. Many ask, is there anything more that could be done?

The easy answer is no. The Supreme Court has ruled that Congress has the power perpetually to extend the terms of existing copyrights. This brief "experiment with the public domain," as the NYT eloquently put it, is over. In twenty years, we can expect terms will be extended again. There is no good reason to expect anything different.

The hard answer is, well, yes, there is always the possibility of an amendment, except that an amendment would be impossibly hard. Article V of the Constitution maps two paths to an amendment. (1) is for Congress to propose an amendment (which would not happen here -- ever); (2) is for the state legislatures to call for a "convention" which may propose amendments. In either case, amendments must be ratified by 3/4s of the states.

The second path has never been followed. People are afraid of it because the convention could in principle propose any amendment at all. As 3/4s of the states must ratify any amendment, that doesn't seem terribly dangerous to me. But clearly, it would take a massive campaign to march through the states to succeed in getting such a proposal passed.

One kind soul asks, "would you be willing to work to amend the constitution." If there were a commitment of sufficient resources to make the campaign real, obviously yes. Impossibly difficult tasks seems my calling these days. I'd be happy to become Mr., rather than Professor, Lessig, if there were a good reason to believe such a campaign could be supported.

But short of the impossible, there are many battles yet to be won. The opinion of the Court gives no support to restoring copyrights once expired. That means the challenges in Golan and related cases survives. And, as Jack Balkin forcefully argues, Eldred does nicely frame the unconstitutionality in the DMCA.

More importantly, there is a political campaign that must now be waged. The many organizations that have been fighting these issues have done an extraordinary job getting people to see what's at stake. That battle has only begun. My hero Siva (which is easier to spell than Vaidhyanathan) has a great piece on Salon on just this point. And Bill Moyers has a piece on PBS tonight that will do lots to help others to see.

I, meanwhile, will be answering email. I should have that finished before the next Sonny Bono Act.

Jesse Walker, who has written many wonderful things for Reason, and lots of great things about the harms to copyright extension, has a brilliant piece interviewing Mickey Mouse about the result in Eldred. My first laugh in 52 hours.

Among the hundreds who have written, Kevin Kelly writes "[y]our stand before the court will only be a failure if we fail to follow through with what is next." Many more ask, "what can we do next."

Here is something you can do right now. In this NYT op-ed, I describe a proposal that would move more work into the public domain than a total victory in the Supreme Court would have. The basic idea is this: 50 years after a work has been "published," a copyright owner would be required to pay a copyright tax. That tax should be extremely low--this proposal says $50, but it could be $1. If the copyright holder does not pay the tax for 3 years, then the work is forfeit to the public domain. If the copyright holder does pay the tax, then its contacting agent would be made a matter of public record. Very quickly we would have a cheap, searchable record, of what work is controlled and what work is free.

If Justice Breyer is right that only 2% of the work from the initial period affected by the Sonny Bono Act continues to have any commercial value at all, then this proposal would mean that all but 2% will move into the public domain within three years. And as the proposal applies to all work that is more than 50 years old, it would apply to a much larger range of work than would have been affected had we prevailed in the Supreme Court. This could give us (almost) everything we wante--98% of the public domain that our framers intended. Not bad for government work.

Of course it would not give us everything. Mickey would not be free. Nor would any of the works that led Congress to pass the Sonny Bono Act in the first place be free.

But without an amendment to the Constitution, or a revolution in Congress, there is nothing we can do about that now. The key now, as Kelly wrote, is "to follow through with what is next." This bridge--between those who want copyright to be forever, and those who want a public domain--should be next.

If enough join this next campaign, then unlike the last, our numbers will matter. Congress counts more votes than five. They race to the reasonable position. Where there is no continuing commercial use of a published copyrighted work at all, then what possible reason could there be for continuing to lock it up?

There is a FAQ about the proposal that will be updated to reflect great questions raised by many.

Read it, and think. And if you agree, then please, do something about it. Write your congressman or congresswoman. Donate via PayPal to free.mickey@foobox.com to help us spread the idea.

And most importantly, write about it in this space. My teacher Dave is right about many things. He is certainly right that the future of begins here.

I've posted an Eric Eldred Act FAQ.

There's a growing and interesting thread at the Volokh Conspiracy about the Lopez argument that we made. Glenn Reynolds had a sensible post on the tension between strict constructionists (or as I have called it, the silent 5) and the result in Eldred. Juan non-Volokh agrees, disagreeing with Orin Kerr.

Orin argues that Lopez/Morrison were federalism cases; Eldred was clearly not. That's no doubt true, but missing from the opinion in Eldred is an explanation why enumerated powers get limited in the context of federalism, but not elsewhere. Judge Sentelle couldn't find such a reason. Maybe there is one. But the principle that would justify limiting power in one context but not in another should have been articulated.

But Juan says that the "strict textualist argument" that Glenn advanced was not advanced by us. He says this argument was Erik Jaffe's. It is true that Jaffee made this argument in the Court of Appeals. But it is not true that we failed to make a strict constructionist argument in the Supreme Court. Indeed, a section of our brief expressly argues that the "grant of power" was the "to promote progress" clause, and that that clause is not a "preamble."

The only difference between Jaffe's position and ours was that Jaffe's would have authorized a court to evaluate any copyright act to test whether it "promoted the progress of science." We thought that was too aggressive a position to take (on at least this point we were right!). Our argument instead was simply that the grant of power must at least be used to interpret the scope of "limited times." That while it was not an independent substantive constraint, it should be used to interpret the scope of the power. This is more "textualist" than Lopez itself: Lopez grounds its reductio on a background view about federalism; we grounded our reductio on a view about "to promote the progress of science."

Eugene passes on Eugene Kontorovich's view that this case was really about original-congress interpretations -- that the silent 5 could vote as they did because they were simply ratifying what the original congress did. That is indeed the most charitable read, though again, it is just bad history. Abstracting the fact that in 1792 the framers had not yet fixed on what it would mean for a law to be unconstitutional, in 1790, there is zero evidence that the framers would have believed the extension of an existing term was within Congress's power. For the reasons argued extensively by the historians, Stevens, and us in our brief, the 1790 Act was not that. Thus it may well be that this case was all about one-step originalism. But on that basis, it was poorly reasoned.

Doc has a brilliant and absolutely correct diagnosis at the American Open Technology Consortium website about how we lost in Eldred. Copyright is understood to be a form of simple property. The battle in Eldred thus sounded like a battle for and against property. On such a simple scale, it was clear how the majority of the Court would vote. Not because they are conservative, but because they are Americans. We have a (generally sensible) pro-property bias in this culture that makes it extremely hard for people to think critically about the most complicated form of property out there -- what most call "intellectual property." To question property of any form makes you a communist. Yet this is precisely our problem: To make it clear that we are pro-copyright without being extremists either way.

So deep is this confusion that even a smart, and traditionally leftist social commentator like Edward Rothstein makes the same fundamentally mistake in a piece published Saturday. He describes the movement, of which I am part, as "countercultural," "radical," and anti-corporate. Now no doubt there are some for whom those terms are true descriptors. But I for one would be ecstatic if we could just have the same copyright law that existed under Richard Nixon.

Our problem is, as Doc rightly points out, that we have so far failed to make it clear to the world who the radicals in this debate are. Until 1976, the average copyright term in the United States was 32.2 years (the maximum term was 56 years, but 85% failed to renew their copyright after 28 years). In the last forty years, that term has tripled -- every single work copyrighted today will remain copyrighted for an average of at least 90 years. Rothstein says that lots has entered the public domain since 1928. Indeed, he is right. But that was because copyrights expired every year between 1928 and 1962, and copyright until 1976 required renewal for an author to get the benefit of a maximum term. Under current law, however, absolutely nothing created now will enter the public domain for at least a century. And because of the Sonny Bono Act, nothing will enter the public domain again in the United States until 2019.

How to change the debate is the hardest thing. But rather than philosophy, perspective and pragmatics seems the best way. Build a public domain (which CreativeCommons will help to do), and show people and companies how the public domain helps them. Indeed, of all the companies out there, this is the one point Disney should certainly understand: Now that they have won the Eldred case, they should be racing to embrace the Eldred Act. No company has depended more upon the public domain. The Eldred Act would give them much more to build upon.

I am very proud that Public Campaign (a beltway non-profit focusing on campaign finance reform) yesterday released this poster under a CC license. If this case has taught us anything, it is the importance of their battle.

Have called for a 14 year copyright term, renewable once. Talk about changing the debate.

We've opened registration on the March 1 spectrum conference.