Lessig

This is an important week. Monday, the FCC rules on its mediacon rules. Monday could also be the day the Supreme Court decides the Dastar case. But most important of all: Wednesday, the 7th Circuit Court of Appeals hears the Aimster case.

EFF has written an amicus in the case (have you contributed yet?). EFF's core argument is that it is time that a Court of Appeals properly interpret the Sony Betamax case. Of all the Courts of Appeals in the US, this is the best one to hear this issue. (Bias-meter reading: high. I clerked at that court). Let's hope it hears it well.

This has been an issue close to my own heart. The best thing about Sony is that it recognized the harm that legal uncertainty can impose upon innovation. If innovators have to guess how a federal court will balance the effects of its technology upon copyright interests, then there will be less innovation. Thus the genius of its rule was that it said essentially this: if your technology is "capable" of a "substantial noninfringing use," then the question of whether your technology should be permitted is no longer a judicial question. If it is capable of a substanial noninfringing use, then the question of balancing (which is always at the core of copyright) is left up to Congress.

The judges don't get announced in a case in the 7th Circuit before the argument, so we can't know who will hear the case. But if you're anywhere close to Chicago, you should go see the argument. It is said that Aimee Deep will be there. But whether true or not, the freedom of that spirit will at least have a chance in Chicago.

Tomorrow's vote at the FCC is discussed in Dan Gillmor's column. The FCC will liberate the networks to consolidate because the FCC feels pressured by the courts. ("Courts" means the D.C. Circuit Court of Appeals, which sees a pressing First Amendment claim favoring network owners, but no First Amendment claim defending the public domain ("copyrights are categorically immune" from First Amendment scrutiny)). Read Dan's column and wonder: here in this democracy, this universal opposition to the actions of a bureaucracy does what exactly?

The Supreme Court has unanimously decided the Dastar case -- and correctly. The issue was whether a film producer could be held $1.5m liable for using a public domain film without giving credit to the former copyright owner. The decision is being described as a loss for 20th Century Fox. It is more accurately a gain for the public domain.

So if you get a chance to read the Supreme Court's opinion in Dastar, keep in mind this brilliant observation by Duke Law Professor James Boyle:

So we now know that while the word "origin" in an IP statute must be carefully defined in order to prevent rights-creep that would undermine the careful limitiations struck in a statutory scheme, the words "promote," "progress," "limited" and even "author" can be defined any way Congress wanted to even if that upsets the careful balance struck in a constitutional clause, because they are only words in the Constitution, and thus much less fundamental.
Got it.

We have launched a petition to build support for the Public Domain Enhancement Act. That act would require American copyright holders to pay $1 fifty years after a work was published. If they pay the $1, the copyright continues. If they don't, the work passes into the public domain. Historical estimates would suggest 98% of works would pass into the pubilc domain after 50 years. The Act would do a great deal to reclaim a public domain.

This proposal has received a great deal of support. It is now facing some important lobbyists' opposition. We need a public way to begin to demonstrate who the lobbyists don't speak for. This is the first step.

If you are an ally in at least this cause, please sign the petition. Please blog it, please email it, please spam it, please buy billboards about it -- please do whatever you can. And most importantly, please help us explain its importance. There is a chance to do something significant here. But it will take a clearer, simpler voice than mine.

Over 1,000 people have signed our petition in just a couple hours! One-hundred times this and we will have something powerful to show. Thanks to all who have helped — and especially those who have translated this argument into terms more people can understand. The net builds power the way Google ranks content -- one link tied to another.

Kevin Kelly writes with the following amazing story:

> Thought you'd enjoy this. I was researching some stuff today and read
> this amazing story in THE INVENTION OF PRINTING IN CHINA, by Thomas
> Carter (1955):
>
> Carter is describing the very first printed book in the world, the
> DIAMOND SUTRA, a intact copy of which was found in a secret cave
> chamber in Kansu China. The book was published on May 11, 868.
> That's, what, some 1100 years ago. Here is the key: the very first
> book ever printed had a public domain notice. Here's what Carter says
> [p. 56]:
>
> The book consists of six sheets of text and one shorter sheet with
> woodcut, all neatly pasted together so as to form one continuous roll
> sixteen feet long... At the end, printed into the text, is the
> statement that the book was "reverently made for universal free
> distribution by Wang Chieh on behalf of his two parents on the 15th
> of the 4th moon of the 9th year of Hsien-t'ung."
>
> Designated Universal Free Distribution from day one.
>
> Wang Chieh would have signed the petition.

Our count has doubled in the last hour. We're now up to over 2,000 signing our petition.

Update: over 3,500. Aaron's got a great graph of the growth.

We have gathered over 6,000 signatures on our petition in a single day. That is extraordinary progress.

Yet there are many who are frustrated that this doesn't go far enough. Many on Slashdot, for example, demand that we "hold out" for something much more radical. That this would be a "compromise" and that we should never "compromise."

We should never compromise. But we must take first steps. We are where we are because most people don't believe in the public domain. Most people don't even understand it. We live in a time when the public domain is more than 75 years old. Yet for most of our history, the public domain was no more than 30 years old. If ordinary people could see the creativity that would be inspired if the 1960s were in the public domain, they would understand again the importance of limiting the regulation that copyright law has become.

They will only understand it if we build it. They will only get it when they see the creativity it would inspire, and the knowledge it will spread. We need to show them why the public domain is important, by building it again.

The Public Domain Enhancement Act would do this. And when not 5,000, but 50,000 people join together to say that it should be our first step, Congress will take it up. Then the burden will be on the otherside to explain why this obvious change should not occur.

But if you think our petition is too tame — if you think it accepts too much of current law, and would be read to endorse the status quo — then sign this alternative. It makes clear that the current system is broken; it demands radical reforms. But as any reform we achieve can apply to future copyrights only, we still have to deal with the current law, and the control it imposes. It therefore also endorses this first step.

Let's see which view of copyright law better reflects this democracy. Let's see just how radical the democracy has become. But on either view, we should take first steps now. We should build support around obvious reforms. And we should force them to resist what seems sensible to everyone else.

The only thing that we should not do is sit back and do nothing, "holding out" for "radical reform" that will never come on its own.

If you want "radical reform," than produce 500,000 signatures on this Reclaim Copyright Law petition. If you want a first step of reform, then help us get 50,000 signatures to Reclaim the Public Domain.

But either way, do something. Now.

I know I said Dastar was decided correctly. I believe it was. But there is a line in the opinion that really gets me -- for it is the only place in the opinion where the Court cites Eldred, and it cites it for a proposition that must be wrong.

Justice Scalia writes, "To hold otherwise would be akin to finding that §43(a) created a species of perpetual patent and copyright, which Congress may not do. See Eldred v. Ashcroft." But this line show why it would have paid for the Court to pay more attention to the originalism in Eldred. For this line betrays a confusion about what "copyright law" was -- at least -- originally. And under an originalist reading of the copyright power, there would be no Copyright Clause problem with Congress requiring attribution for public domain works.

The confusion is the failure to distinguish "copyrights" from "authors rights." As Ray Patterson argued over 30 years ago in "Copyright in Historical Perspective," the framers understood "copy-rights" to be distinct from "auhors rights." Authors rights protect the right to attribution, and to some degree, the right of integrity. These rights are related to the "moral rights" the Europeans speak of. They are fundamentally distinct from the "copy-right" -- which was a right to control the publication of a work.

From an originalist perspective, then, it is true that Congress shouldn't be able to grant a "copyright" -- a right to control the publication of a work -- for a perpetual time. But the right to attribution is not, from that perspective, a "copy-right." And thus if there were another power of Congress that could support that right -- the Commerce Power, for example -- then a requirement of attribution should not run afoul of the copyright power.

Judge Posner is one of the three judges hearing the appeal this morning in the Aimster case. This should be very interesting.

Jed Horovitz has produced an extraordinary film about the "culture wars" which may well not be around for long. You can get Willful Infringement on DVD. Many people should. When the lawyers find this, we'll need archives stored in many places. (Note: the web page says I'm in the film, but only for a few seconds. The really great characters are two clowns.)

Nicely summarized here.

for the Reclaim the Public Domain petition.

So this is very cool -- the 7th Circuit posts mp3s of its argument, so you can hear the argument in Aimster here. (Thanks to Howard Bashman.)

The White House has announced a new spectrum initiative.

This is a nicely detailed review of the Aimster argument by a Chicago attorney.

We are approaching 10,000 on our petition. That is our goal for this week -- so please use the excuse of the weekend to pester your friends. There are more announcements next week, but please do what you can to help now.

So we've hit 10,000. This is extraordinarily great news. Thank you to everyone.

We have posted another letter written to members of Congress from directors and actors about the threat that endless copyright terms creates for our culture. As the letter argues, most of the film from the 1920s and 1930s is not commercially exploited, which means most of the film from the 1920s and 1930s sits unpreserved and rotting away. But because of copyright regulations, it is effectively impossible to restore this film until the copyright expires. And when weill that be exactly?

Meanwhile, we're approaching 12,000 signatures, which is great great news. Please help spread the news.

Cabinet Magazine has a great graf that shows the stagnation of the public domain, as well as an interactive version showing the same. If the numbers are right, then this battle to restore (in effect) a renewal requirement is the most important battle to reclaim the public domain that we could wage.

The Creative Commons blog has a great story about Jeff Bezos recommending Cory's first novel (and there's more coming!) Down and Out in the Magic Kingdom. Cory's book is available either for purchase or for download -- for free, under a Creative Commons license.

Joi Ito has posted a Privacy Report on technology and legislation across the world. It is available under a CreativeCommons license.

Commons-blog has a nice link to a story about Milwaukee libraries being defunded. Yet at the same time, extensions of copyright terms simply increase the cost of getting access to content. If every librarian signed our Reclaim the Public Domain Petition, then perhaps we could rebuild a public domain that could make the costs of libraries fall.

another cost of losing eldred.

Evan Hunt has a long-ish post about ways to understand environmentalism, both for tangible and intangible resources. As he writes, protecting the commons is about making sure that in the future "you won't have to be rich to breathe fresh air" -- or work for a major studio to be free to build upon our past with film. I love work that pulls together different fields into a common frame. This does it nicely.

Joi Ito has joined the Creative Commons board. One clearly bright spot just got brighter.

As reported in Michael Geist's great Internet Law News service:

>CANADA TO SCRAP COPYRIGHT EXTENSIONS ON UNPUBLISHED WORKS
>Decima's Canadian New Media reports that the Canadian
>government plans to drop controversial provisions from a
>bill that would have extended the term of copyright for
>unpublished works by deceased authors. Dubbed the Lucy Maud
>Montgomery Copyright Term Extension Act, members of a
>committee considering the bill noted that they had been
>flooded with calls and emails of people concerned with the
>copyright extension.

Help us flood more members with calls and emails!

Matthew Rimmer has a careful and insightful piece about Eldred v. Ashcroft. He has some good criticism of the Eldred Act.

Or at least, in the best of all possible worlds it would be good criticism. He says we need more radical reform. He worries about the burden on creators. True, the registration system was broken -- because a government agency ran it. That needs to be fixed if any rebirth of registration is to do any good.

But the point about the need for something more radical bothers me. Sure, absolutely, we need something more. But how are we going to get there? There is no substantial push by ordinary people for the public domain. (Of course, there are 13,000 extraordinary people who get this, but only when you multiply them by 1,000 will we have a movement.)

Why don't ordinary people get it? Because few understand why the public domain is valuable. Why don't more see why the public domain is valuable? Because today the public domain is over 75 years old. It is ancient history for us, irrelevant to much of ordinary culture.

If the public domain were as young as it was for most of our history (30 years old, max), then losing it would mean something to most people. If the work of the 1960s and 1970s could easily be built upon, then taking that work away would excite a revolution. But the (brilliant) strategy of the copyright extremists has been to slowly remove the public domain, by slowing extending copyright. (Remember Hal in 2001, as Dave turns off his brain?) They have succeeded in making it irrelevant to most. The question now is how to make it relevant again.

In my view, reclaiming it would make it relevant. Exploding the content within the public domain in a context where it can be built upon and spread (ie, now, with the internet) will make people see again why the public domain is important. And if they see that, then they will again defend it.

It is this first step that the Eldred Act would achieve. The revival of a registration requirement would move content into a public domain quickly. (You can see the point with this Cabinet Magazine graphic.) And only then might we expect a public to demand more.

There are many who have written brilliantly about what is right in this context. Rimmer's piece is an addition to that. But the hard problem is how to make the right real. That is what this movement needs now.

Declan's got a great piece about the Council of Europe and rights to reply.

Senator Hatch has been swallowed by the extremists. (Though this might not be such a bad idea. Can we bomb the offices of stock brokers thought to be violating SEC regulations? Or bulldoze houses of citizens with unregistered guns? Or -- yes, this is good -- short the telephones of people who use indecent language?)

Lawrence Solum and Minn Chung have a comprehensive and powerful view of layers in network architecture, nicely linking that architecture to policy implications, in particular, how governments regulate.

Dennis Kucinich is blogging his campaign for President. I'm told it is with his own fingers. I can see it is with a Creative Commons license.

I wrote this piece for CIO Insight, arguing that companies ought to let customers spy on their customer service agents. But I wonder: When you get a recording while on hold that says, "Calls may be monitored to assure quality assurance," doesn't the passive voice already authorize you, the customer, to tape as well?

If you have not yet, you should consider contributing to the RIAA scapegoats. Jesse Jordan's story is particularly extraordinary. He built a search engine for RPI's network -- one of a half-dozen such engines running at the time. Three-fourths of the files in the directory were not music files. Yet he was sued by record companies, demanding hundreds of millions in damages.

When they discovered that he had saved $12,000, they gave him a classic Sopranos-like choice: Either defend yourself in court (which would cost his family over $200,000) or pay us $12,000. He handed over the $12,000.

He, and some of the other student defendants, have set-up donation booths. Whatever your view about these issues, you should consider contributing. Whether or not the RIAA is right about the law, there is something deeply wrong about using the law to squash the likes of Jesse. He was not running Napster; indeed, he did nothing more than hack an improvement to an already existing search technology that existed in RPI's net. Yet as the RIAA lawyers knew, it would cost him more to fight this suit than to settle it. So his defense would never get a chance to show that the law is not yet as extreme as the RIAA lawyers would like it to be.

Our legal system gives companies like A&M Records the power to do this to people like Jesse. We each, individually, by donating to these students, can help remove some of the burdens of that flaw. We all, collectively, should do something to change that legal system to remove that flaw. Soon.

So loyal Dean supporters have been emailing me about Howard Dean's Blog for America, and indeed, it is a great blog. Simple, minimalist, with access to real content, and a nice blog roll of the scores of Dean blogs out there -- but for the absense of a Creative Commons license, it is brilliant.

As is much in the doctor's campaign. There is a passion and a clarity to Dean's message which mixes well with the passion and, um, ok, just passion of the web. An extraordinary number have volunteered for his campaign because of the web. And Tuesday's MoveOn.org primary will demonstrate any power that this means might have.

The experts say Dean can't win. I'm no expert, so what do I know. So far I've only met the one man Karl Rove seems most afraid of -- Edwards. As I've blogged, I think a great deal of the Senator. Indeed, he is the first politician to inspire in a very long time.

Edwards' campaign is run by a bunch of experts. They resist the fads of the net. They have a fancy website that feels like a 4th of July commercial. There is relatively little direct contact. There is very little of a bottom-up feel.

That's all part of the strategy, they say, and again, who am I to question it. The plan is that Edwards should place in the first two primaries. But because he will have more money than anyone, he will sweep the next 20. So going slow, saving resources, etc., is the strategy. And he is sticking to the plan.

That may be right. But I would think what the campaign against President Bush needs is the passion and commitment that is spilling out everywhere on the web -- mainly for candidates other than Edwards. How much could it cost to open a channel to enable this bottom-up rally? How bad would it really be to give Madison Avenue a rest?

It just seems weird to me: between the son of a mill worker, and the son of an investment banker, which would you expect to run the populist campaign, in style if not in substance?

If it were mine to call, I'd build a million from the bottom up, focusing on values that are common to us all -- truth (as opposed to lies); right (as opposed to wrong).

But what do I know. I've never won anything wonderful, save the love of the mother of our (soon to be born) boy.

Dan Gillmor nicely captures the truth around the emerging spam consensus in DC: A spam bill that will make it (1) harder to decline UCE from companies with famous logos, and (2) impossible to block UCE from spammers.

Phil Greenspun has a funny (as in sad) story about the market rising because the public domain is being transferred to corporations. The hook is (of course) the Sonny Bono Act (Free Culture!), but then Phil tells this bizarre story about how Disney World has apparently succeeded in getting the airspace above Disney World assigned to it. As Phil writes,

>Ever since the dawn of aviation it has been held that airspace belongs to the
>public and is to be regulated for the benefit of all by the FAA.  This is what, for
>example, prevents the owner of a farm in Missouri from demanding that Delta
>Airlines pay him a tax every time they fly over his farm. 

But there is a relevant pre-history here that is useful to remember. Before "the dawn of aviation," in fact, the law was that the owner of a bit of land owned not just the land, but all the land to center of the earth, and, as Blackstone put it, "to an indefinite extent, upwards." (See pg 18 here).

This, of course, created a problem once the history of aviation was born. For obviously, if I own all the space above my land, then companies like United are just napsterizing my property as they fly above my land.

The Supreme Court finally resolved this matter in 1946. The Causby's, North Carolina farmers, complained because military aircraft were causing their chickens to fly in panic to their death as they smashed into the walls. The Causby's claimed "trespass" and demanded the military stop flying over their land.

The Supreme Court rejected the argument that airplanes trespass. As Justice Douglas wrote for the Court,

>[The] doctrine has no place in the modern world. The air is a public highway,
>as Congress has declared. Were that not true, every transcontinental flight
>would subject the operator to countless trespass suits. Common sense revolts
>at the idea. To recognize such private claims to the airspace would clog these
>highways, seriously interfere with their control and development in the public
>interest, and transfer into private ownership that to which only the public has
> a just claim.

"Common sense revolts at the idea."

Where's a good "common sense revolt[]" when you need it?

John Laurence Poole runs Editions Poole. Editions Poole publishes piano ensemble "repertoire, specializing in transcriptions and eight hand piano music." As a 4th of July gift, Poole is giving away a free arrangement of the Star Spangled Banner composed by John Stafford Smith and arranged by Leopold Godowsky. In return, he is asking people to help free more music by signing the petition to Reclaim the Public Domain. See his offer posted to rec.music.classical here.

Thanks, John!

"What you don't understand, Lessig, is that your bullshit 'open' or 'free' types will never -- NEVER -- be able to compete with corporate organization. Squabbles-about-egos-pretending-to-be-about-the-merits can never be quashed. There is no one to say 'enough, let's move on.' So every great idea that your type creates, we'll just wait, watch, and then take. Always." paraphrased from a conversation with someone from within one of the (how many are there?) largest proprietary code companies

Aaron has been trying to prove this skeptic wrong. See his plea and proposal here. I know from email early on that Dave too has the desire that progress be made. Let this be the proof that the skeptic is wrong.

I have just arrived in DC, where I was planning on meeting with staffers on the Hill tomorrow to drum up support for the Public Domain Enhancement Act. We've got CD's of all 15k+ of the signatures on our Reclaim the Public Domain petition to hand out. It was going to be a fun day (as fun as any DC day gets) in DC.

But we've now learned that Congresswoman Lofgren (D-CA) and Congressman Doolittle (R-CA) have agreed to introduce the bill into Congress. We're having an event at 1pm tomorrow at the Capitol to announce this first step on a long road to Reclaiming the Public Domain.

Count this as great news, and spread the word: there are two great souls on Capitol Hill. I'll see if I can find some more.

Dave and the Berkman Center folks have been building a "user agreement for weblog hosting at Harvard Law, and a privacy policy. We hope it could become a template for other universities, schools, libraries, perhaps even businesses." Comments and help invited.

It was a great day in DC.

Public Knowledge had arranged the meetings, with members and their staff from both sides of Congress, and both sides of the isle. We met with the staffs of Senators Cantwell, McCain and Leahy, then met with Congressman Cannon and Boucher. And -- at her request -- we met with Congresswoman Bono.

It was a strongly positive meeting with everyone, though of course Congresswoman Bono started most skeptically. By the end, however, she demonstrated a genuine openness to the issue, and a willingness to consider the proposal. It is of course very easy to demonize the otherside. But after listening to her talk about both this and the Sonny Bono Act, her motivations seemed quite genuinely to be about securing to artists continued reward from creativity. Not a bad motivation, all things considered, if we can balance it with protection of the public domain.

Others began closer to where we were, and so we ended even closer to where we wanted them to be. Congressman Boucher agreed to join as a sponsor -- so at least three good souls in DC.

The best part, of course, was Congresswoman Lofgren's press conference, announcing the bill that she and Congressman Doolittle will introduce, and explaining the reasons. She gets it, and she is powerful and right in her explanation. We owe her a great deal.

Indeed, I had that thought about everyone we met today. This was a strange day of feeling Congress sometimes somehow might work. It's very early, and we have yet to weather the criticism and opposition. And of course, if money lines on this one, we will not prevail. But every, from Members to staff, took this as seriously as anyone could hope. Let's see what happens.

One point was clear however: The work of the petition was extremely important. At least one Member indicated to me that he/she had been made aware of this issue by someone signing the petition. Another member indicated they had heard from people who had signed the petition. The more of this we can build, the more likely it is that we can build enough support to prevail.

Stay tuned for the next stages. But thanks to Public Knowledge, and the 15k+, who have helped carry this idea one step closer to reality.

It was an extraordinary week last week at the Supreme Court. Most of the press has focused on the Michigan affirmative action cases, which were of course important, and rightly decided. But I continue to be struck by the profoundly important decision in the Lawrence case, which found it beyond the government's power to regulate the private, consensual sexual behavior of adults.

There will be gaggles of law review articles written about this, and lots of speculation about the continued life of privacy jurisprudence. But I was struck by a more tangible reaction to the decision that says a great deal about how it feels to those it affects.

We're living in the Castro in San Francisco while renovations on our house are completed. As anyone who has driven through this neighborhood knows, at Market and Castro there is a huge Gay Pride flag that flies every day of the year. Huge -- maybe the largest flag I have ever seen.

I was out of town on the day of the decision. But I am told that the day after Lawrence was decided, the Gay Pride flag came down. An American flag was raised in its place.

It was an extraordinary moment that said more about the importance of this decision than any commentary ever could.

The California Supreme Court has decided that Hamidi did not trespass when he emailed complaints about Intel to Intel employees.

I've had so many exchanges in email and offline about the role the Internet is playing in this election, and I continue to be struck by the will of many to believe that it matters not at all.

But let's remember this: We're about to see an amazing shift in passion and attention in this Democratic Primary. To those who insist the Internet matters not at all, what explains this?

The issue is not how many people you have on your mailing list; the issue is how many are writing and persuading and building a community around your candidacy. One candidate has done that bettter than anyone else. Congratulations, Governor. Whether or not this is how campaigns should be run, it is exactly how elections should be won.

A great petition of artists is speaking back at the RIAA. Congratulations.