Lessig

So here's an interesting struggle in a corner of creative space you might not expect it: Open Source Yoga. The attempt to resist the control of copyright over Yoga (yes, really) is described here.

Apparently these yoga people don't realize that if yoga could only be propertized, and then sold to the highest bidder, it would be cared for, and protected. As Mr. Valenti has observed, without copyright protection, yoga is an orphan. But with perfect and perpetual copyright protection, it could be auctioned to the entity that could develop it best, and support its growth most strongly. Maybe Gold Gym could buy it, or MTV. Or maybe Mickey could take up yoga, after Disney bought yoga. See [a very interesting story in the LA Times from July 23 about the revival of Mickey's image that I can't link to because it is in a paid archive and Dave Winer hasn't solved this problem yet]. The possibilities are endless.

Jon Gordon has an interesting interview with Senator Coleman about the RIAA lawsuits. The stream is here, but wasn't working last I checked. Here's the mp3.

John has sent me the following response to the comments on the post about his BA experience. I have posted my view here.

From John Gilmore:

It's been interesting reading. I'd like to respond. I suppose the obvious place to start is with Seth Finkelstein's trolls. (Of course he is doing what he accuses me of -- making outrageous statements and then chuckling when people take them seriously).

I flew to London on Virgin Atlantic two days after the BA incident. I am happy to report that I wore the button, and that neither their passengers, cabin stewards, nor pilots were hysterical. I wore the button in London. I crossed the Channel where the crew gave the shorted possible glance at my passport. I wore it yesterday in Paris.

The button is not a joke. It's a serious statement which one may agree or disagree with. The point that people seem to be missing is that a "suspected terrorist" is not the same as a "terrorist". Yet, that's exactly the conflation that has occurred: treat every citizen like a suspect, and every suspect like a terrorist.

In London and Paris the newspapers are taking Guantanamo seriously -- because their own citizens are imprisoned there without trials. The corrupt US government was careful to remove the one US citizen they found -- but the citizens of other sovereign countries, even those of very close war allies, are in prison. Without trial and without lawyers, and with intent to try them in front of judges sworn to take orders from the President. I have no doubt that American citizens, such as myself, would be treated in the same way if the public and the courts would let our fascist leader get away with it.

On the BA flight, in my carry-on bag, I had brought the current issue of Reason magazine, which has a cover story with my picture and the label "Suspected Terrorist". (It didn't even occur to me to censor my reading material on the flight; I must need political retraining. I hadn't read most of the issue, including Declan's piece in it, plus I wanted to show it to Europeans I met on my vacation.) During the British Airways incident I never removed the magazine from my bag, but supposing I had done so, and merely sat in my seat and read it, would that have been grounds to remove me from the flight (button or no button)?

I am not a lawyer (lucky me!) but I do follow legal issues. The carriage of passengers by common carriers is governed by their tariffs, filed with the government. Common carriers are NOT permitted to refuse service to anybody for any reason. In return they are not held liable for the acts of their customers (e.g. transporting dangerous substances, purloined intellectual property, etc). BA's "Conditions of Carriage" are part of their tariffs (other parts include their prices, etc). You will note paragraph 7: they can refuse passage...7) If you have not obeyed the instructions of our ground staff or a member of the crew of the aircraft relating to safety or security. The crew ONLY has the authority to order passengers around when the orders relate to safety or security. An order to cease reading a book would not qualify.

Some people here (including Mr. Troll) think that the minor risk that someone on the plane will have a panic attack after reading a tiny button, makes the button a "safety" issue, as if I had falsely cried "fire" and risked starting a stampede. Such people seem to be holding me responsible for the actions of others. Were I on such a plane, whether or not I was wearing a button, the person I'd ask them to remove is the one having a panic attack, not the one sitting quietly in their seat.

(Similarly, some people hold me responsible for the inconvenience to passengers. As Virgin Atlantic demonstrated, the airline were in complete control of whether or not to inconvenience the passengers.)

Let me also say in my defense that I seldom fly these days, so I am not used to life in a gulag. I had zero expectation that my refusal to doff a button would result in the captain returning the plane to the gate. But even if I did fly often, my response would be the same: to constantly push back against the rules that turn a free people into the slaves of a totalitarian regime. I push back using the rights granted me by the constitutional structure of the country, plus my own intelligence and resources. Way too many of you readers are like the Poles who, under orders from swaggering bullies, built the brick wall around their own ghetto, as shown in the award-winning movie "The Pianist" (which I watched on the Virgin Atlantic flight). The US is currently filling the swaggering bully role at home, in Iraq, and in the rest of the world. (Come out to free countries and ask around, if you disagree.)

Here are some interesting incidents relating to these issues:

• Dr. Bob Rajcoomar gets a settlement and formal apology from TSA -- only after suing with help from ACLU. Dr. Rajcoomar, a U.S. citizen and Lt. Colonel in the United States Army Reserve, is of Indian descent. After an in-flight incident involving an unruly passenger, Air marshals handcuffed Dr. Rajcoomar without explanation and took him into the custody of Philadelphia police. His wife Dorothy, who was also on the flight, was given no information on what had happened to her husband. Because the authorities confiscated Dr. Rajcoomar's cellular phone, she had no way to contact him. After four hours of detention, TSA personnel told him that he had been detained because air marshals on board the flight did not "like the way he looked." The agency's official explanation for Dr. Rajcoomar's treatment is that while on board, Dr. Rajcoomar had been observing the actions of the air marshals "too closely"!

• ACLU sues four airlines over ejecting passengers because of their race. Subsequent news in these lawsuits is that at least three of them have survived the airlines' "motion to dismiss", i.e. the court thinks there is a real injury to these peoples' rights.

• Passenger detained for speaking with journalist about a NASA nuclear rocket project, while waiting for his airplane.
  
• TSA's CAPPS 2 will track every passenger by their date of birth, home address, home phone, and full name -- and stop or search anyone based on secret criteria. The TSA's August 1 announcement makes every airport a "law enforcement checkpoint" which you cannot pass through without having your "papers in order".

• TSA publishes rules demanding ID on passenger boats. (TSA and cruise lines have already been requiring these IDs, but under unpublished regulations. Ditto for Amtrak trains and long-haul bus lines.)
  

Above, Floyd McWilliams posted a perfect example of what's wrong with this debate:

Gilmore is insulted by being labeled a "suspected terrorist." Okay, but then how would an airline figure out that he's a peaceable fellow except by, well, identifying him? Did he expect to be labeled a low security risk because he wasn't swarthy?

No. I expected to be treated as peaceable because I had not breached the peace. I expected to be treated as innocent because I was not guilty of any crime.

I have the pleasure of serving with John Gilmore on EFF's board. While there are many things we disagree about, we share many values, and this one in particular: At a time of terror, we should demand reasonableness of those with authority — even more strongly than in times of peace. I view BA's behavior here to be unreasonable. I don't doubt they have the "right" to do what they did -- such is the nature of law in a time of terror. That's not, in my view, the point. They have the responsibility to behave reasonably in the face of possible threats. Gilmore's behavior was not a threat. If it was a threat, removing the button would not have eliminated the threat. Demanding he remove the button as a condition of flying therefore serves no good end, except the end of showing who's in charge. Reason, not power, should be in charge always, but especially now.

Eben has written a wonderful (and short) piece mapping the possible claims SCO might be making against GNU/Linux, and why these claims have likely no basis in the law. Read the essay here.

Red Hat has apparently filed suit against SCO, and promised a fund to protect GNU/Linux.

EdCone has a brief and interesting interview with Senator Edwards. With one more step, he'd be in blog land. I'm not quite sure what's holding him back. For a man who has defended affirmative action across North Carolina, this would be easy.

Creative Commons has announced a contest to help us spread the message better. The idea is to build a 2-minute moving image that says what Get Creative says better. Cool prizes, amazing judges, lots of new creative content.

Next week I'll be working offline to finish a book ("Free Culture") before my wife finishes carrying our kid. (And on that subject, check out this). But the blog will continue with Congressman, and presidential candidate Dennis Kucinich. Congressman Kucinich has had a blog for a while (made free under a Creative Commons license). I'm happy to welcome him to this space starting Monday. More on this before then.

Public Knowledge, Creative Commons, and The Center for the Public Domain have launched a call for stories about the public domain.

There is a great deal of very exciting stuff that has already happened at Creative Commons, and that is about to happen too. We've got some exciting announcements coming soon, and the take-up rate on the licenses has surpassed our wildest hopes.

But there are the moments of disappointment. And this exchange with "legal" at mp3.com is one of the most disappointing.

The story begins when our assistant director, Neeru, sent an email to mp3.com to try to open up a line of communication about Creative Commons and its mission. As she wrote,

>> Hello MP3.com,
>>
>> Creative Commons provides free copyright licenses to musicians who want
>> to distribute their content online, but wish to reserve some copyright
>> protection. In fact, one you your artists, the Phoenix Trap, has
>> incorporated a Creative Commons license into their MP3.com home page.
>> We would love to help you offer Creative Commons license to your users
>> -- it's free, and a great way to make clear the rights and
>> restrictions artists would like to offer their fans.
>>
>> http://artists.mp3s.com/artists/15/the_phoenix_trap.html
>>
>> Please feel free to contact me.
>>
>> Regards,
>>
>> Neeru
>>

Harmless enough, I thought, and it was encouraging to see mp3.com artists begin to use CC licenses.

Monday, "legal" responded as follows:

>> From: legal@mp3.com
>> Date: Mon Aug 4, 2003 11:05:33 AM US/Pacific
>> To: neeru@creativecommons.org
>> Subject: RE:Creative Commons and MP3 [#1316347]
>>
>>
>> Nothing replaces the legal protections provided by registering a
>> copyright with the US Copyright Office--most certainly not your "free
>> license."
>>
>> This email is formal notice for you to cease and desist from further
>> contacting our artists through our web site to solicit for your
>> product/services, which are not sanctioned by us.
>>
>> Legal Department
>> Music & Media
>> Vivendi Universal Net USA, Inc.
>>

I can't describe how depressing this sort of stuff is. There are many in the content community who understood right away the benefits and virtues of Creative Commons licenses. Indeed, at our announcement in December, we had a video endorsement from not only John Perry Barlow but also Jack Valenti.

But we've obviously not yet made the mission clear enough -- at least if this is the sort of response we get from a company like mp3.com. Mp3.com was, in its birth at least, one of the most innovative digital music companies out there. Artists were free to sign with mp3.com without promising exclusivity. The company did a great deal to enable a wide and diverse base of creators, who could produce new music and sell it on the site. Tied with the fantastic eMusic.com site (which enables unlimited downloads of real mp3s for a flat monthly fee), the potential for this group of companies to help build a revolution in the creation and distribution of content is unlimited.

Except, perhaps, by old debates and even older thinking. So when "legal" writes:

>> Nothing replaces the legal protections provided by registering a
>> copyright with the US Copyright Office--most certainly not your "free
>> license."

I want say: Of course, and nothing in CC's mission would limit or discourage an artist from registering copyrights with the US Copyright office. Indeed, we are working on systems to make that registration much easier.

And of course, our "free license" is not meant to replace a copyright registration or copyright protection for that matter. Indeed, without copyright protection, our licenses are useless.

But I don't get just why artists would not benefit from a "free license," "legal" at mp3.com? Artists in general don't make a great deal of money. You'd think eliminating the cost of lawyers would be a great help to them, wouldn't you? Indeed, if you count the number of "free licenses" that we've given away, and you calculate their value the way the RIAA calculates the cost of music piracy, Creative Commons has given more than $100 billion to the creative community. That can't hurt artists, can it?

>>
>> This email is formal notice for you to cease and desist from further
>> contacting our artists through our web site to solicit for your
>> product/services, which are not sanctioned by us.

[Sigh] again. Again, the greatest thing about mp3.com was that the artists were not owned by mp3.com, or anyone else. They were free. Yet here we are being ordered not to contact "our artists" "through our web site." I'm not sure just what that would mean, but the tone is very sad. Mp3.com artists are among the most creative artistically and commercially. Shouldn't they be free to decide how best to sell their songs? Wasn't that what mp3.com was all about?

>>
>> Legal Department
>> Music & Media
>> Vivendi Universal Net USA, Inc.

Maybe the signature captures it all. The promise of something different at mp3.com -- despite great technology and really innovative business ideas -- must always compete with "legal." Innovation must compete with tradition.

Is it impossible to imagine the lawyers ever on the side of innovation?

The bottom line is this: We've done lots of work at Creative Commons to change how people think about these issues. I think we've done great work. But we've obviously not done enough to crack through, even in places like mp3.com. So help us. Enter our contest. Blog better ideas. And tell me how we might get the lawyers to see. A year ago, I was quite confident I knew how. It has been a year of shaking that confidence.

So if this California recall succeeds, then more likely than not the Governor who replaces Gray Davis will have received fewer votes than Gray Davis. Davis could get, say, 49.9% of the vote, and would be "recalled." But his replacement is chosen with a simple plurality. Thus, in a field of 200+ candidates, it is more likely than not that the replacement governor will have gotten fewer votes than the governor he replaces.

Which of course reminds one of another election -- the 2000 presidential election, where again, through a special rule in the Constitution, the executive who won had fewer votes than his opponent. Though President Bush won in the Electoral College, he plainly lost the popular vote. Nonetheless, because of a constitutional provision (and an overly activist Supreme Court), the candidate with fewer votes won.

In both cases, the results are consistent with the letter of the law. But one might well ask whether they are consistent with the spirit of democracy. No doubt there is still strong support for the (imho outdated) institution of the Electoral College. So Bush's victory (forgetting the Supreme Court's role for a moment) is not only consistent with the letter of the law, but consistent with an institution that at least some believe makes sense.

But the same can’t be said for the California recall provision. Whether or not you believe in the power to recall, the California provision is insanely stupid. It makes no sense to decide the winner on the basis of a plurality. This is just a badly crafted constitutional provision -- a kind of constitutional loophole. It's the sort of clause which we fail people for writing in constitution-drafting classes. (No, there are not really any constitution drafting classes, but clearly there should have been in California at the beginning of the last century).

Yet it is one thing to have a bad clause in a constitution. It is quite another to rely upon it to become the Governor of a state as important as California. Whether Republican or Democrat, there is something deeply wrong about taking advantage of a constitutional mistake to become governor of one the most important states in the nation.

I can't understand why the Democrats, or at least why the Davis supporters, don't make this point clear. And more importantly, I can't understand why Governor Davis doesn't at least nominate a protest candidate -- a candidate who says (1) this election is wrong, and (2) whether you like Davis or not, you should vote not to recall him on the basis of a constitutional mistake, and (3) after you vote not to recall him, you should vote for the protest candidate. That candidate would promise not to run for reelection -- or for any office in California, since no one should benefit politically from a constitutional mistake -- but would hold the governorship “in trust” until we have another election where the candidate with the most votes wins.

One might say, who could possibly resist such a loophole. That whether it is honorable or not, what politician would forgo the chance to become President or Governor, regardless of the means?

Yet we should remember that many believe that Nixon made essentially this choice when he refused to fight the results in Illinois and thus let Kennedy become President. In his moral universe, that's not how an executive should become an executive.

It is a measure of this Enronera that neither our President nor over 200 candidates in this California recall election live up to the moral standards of even Richard Nixon. By whatever means, they will claim power.

There's an interesting story to be found in the thread here about a recent decision by Grinnell College to shut down a discussion space, Grinnell Plans, which was an important and vibrant community for students, staff, and alumni alike. The site has now moved to a private server, and the conversations continue.

The link above does a nice job in laying out the arguments that led to the removal, and arguments the school made for closing the community. Is Grinnell's decision common?

Jonathan Percy runs a cool site called Green Plastic, which is a fan site for the band, Radiohead. The site hosts, among other things, lyrics from the band. In June, Warner/Chappell Music contacted Percy to ask him to remove the lyrics.

This is of course increasingly common. Lyrics are copyrighted content. Posting lyrics makes a "copy" of them. Therefore, copyright owners who believe more control is better banish lyric sites to darkness.

But this time, the story was a bit different. Percy complied, and took the lyrics down. Fans were upset, and complained to Warner and to the band. Warner Chappell then contacted Percy again, and gave him a free license to post the lyrics. The lyrics have now returned.

Percy thus has permission to spread culture. Good for Warner Chappell.

I got an email from a reader. "I'm reminded of ibex," she wrote. Indeed. Here's a couple pages from Code and Other Laws of Cyberspace.

As announced last week, Congressman Dennis Kucinich, candidate for President, will be guest blogging this week. He'll be posting his first post in about an hour, but in a bit of a change from the last presidential visit, he'd be eager to see questions from you that he can frame his posts around. He'd like to address at least (1) copyright policy, (2) media consolidation, (3) privacy, and (4) electronic voting, so please post questions to this entry about those issues, or any other issues you'd like to see discussed.

Thank you to the Congressman for continuting this experiment. Thanks to you for making it worthwhile for him and you.

I would like to thank Professor Lessig for inviting me to begin a dialogue with you.

Wherever I travel throughout America, including here, the issue of corporate media and media accountability arises in every question and answer session. The American people are deeply concerned about the erosion of democracy, notably the impairment of free speech which has occurred through the increased concentration of market power in corporations which own newspapers, radio and television stations.

I’ve spent a great deal of time studying this issue. I hold bachelor’s and master’s degrees in speech and communication from Case Western Reserve University in Cleveland, Ohio. During my academic career, I studied the Failing Newspaper Act, which provided for joint operating agreements (JOA), which presaged the death of afternoon newspapers in America. In my own lifespan, I’ve seen the city of Cleveland go from 3 daily newspapers, the Cleveland News, the Cleveland Press, and the Plain Dealer, to just one. I’ve studied the Federal Communications Act of 1934, which set specific responsibilities for broadcast license holders to serve “in the public interest, convenience, and necessity.” H.L. Mencken, the famous critic, once wrote “freedom of the press is limited to those who own one.” Indeed, the Constitution is liberally interpreted when it comes to the government having any role in directing what goes into print. And that is as it should be (that is not to abandon questions of horizontal and vertical market concentration). However, holders of broadcast licenses have specific responsibilities to the public. It is the public which owns the airwaves. The public provides a license in exchange for service. At the same time the definition of media has expanded to include interactive services, the requirements of service have been largely abandoned as media monopolies have grown more powerful. Community groups struggle for recognition, social and economic causes which run counter to vested interests are marginalized, and our politics are corrupted by having to raise huge amounts of money from one set of corporate interest to buy airtime from another set of corporate interests.

As the next President of the United States, I intend to address this issue directly. First, the Justice Department will engage in an ongoing dialogue with major media over how the public interests can be better served. Second, I will sign an executive order which will require all broadcast licensees to provide free time for all federal candidates. Third, additional funds will be appropriated for the support of public television and public radio. Fourth, community cable systems will receive guidance as to how they may more effectively enlist community participation in the airing of broadcast media programs. Fifth, a White House conference on the protection of the First Amendment and its relationship to media concentration will be formed to enlist the participation of academics, activists, and the industry, in order to facilitate a broader and more effective understanding of the central role which media plays in the life of our nation.

Your comments and suggestions are appreciated. It is through such dialogues on democracy that we can fulfill our responsibility to form a more perfect union.

Dennis J. Kucinich
Philadelphia, Pennsylvania

This entry and my personal blog are licensed under a Creative Commons License.

Yesterday, Rob asked several questions:
1) It is almost certain that you will be working with a Republican-controlled Congress at least initially during your tenure. Given that, do you believe it likely that you will be able to get the Congress to pass bills authorizing programs for national health care, withdrawal from NAFTA and WTO, reversal of the Bush tax cuts (which will probably be permanent by then), and dealing with other hot-button issues that the Republicans have been so steadfastly against. You can't just declare these things by executive order; and I don't see how you can get such "radical liberal" programs passed. That makes many of your 10 key issues non-starters.

My nomination will set the stage for a Democratic Congress. In 1932, when president Franklin Roosevelt was nominated, he ran on a platform of broad economic reform, which excited people to come out in vote in their own enlightened self-interest. As a result, FDR led a Democratic sweep, which resulted in a pickup of 90 House seats and 13 Senate seats. This was accomplished because he represented profound change. He represented jobs, he represented rebuilding America, he represented a hope for popular control over predatory corporations. My nomination will reverse the results of the 1994 election when the Democrats were unable to regain the House and lost the Senate principally because the parties' ties to corporate interests muted the differences between the parties and discouraged the Democratic base. My nomination will excite the Democratic base, will broaden the reach of the party, and will engage third party activists to join us in a mighty effort to reclaim our government.

2) You state that one of your first acts as President will be to unilaterally withdraw the U.S. from NAFTA and the WTO and institute a regime of "fair trade agreements." Do you believe that our global trade partners will be receptive to such a regime, given that almost by definition those agreements will be fairer to us than to them? Or will we instead see a return to the bad old days of preferential tariffs and trade wars, which the WTO was created to try to prevent? Or even worse, would withdrawal merely accelerate the migration of trade from our country to other countries with more open trade practices? Would we not then be hoist by our own petard?

We are now being hoisted on the petard of NAFTA and the WTO. America's trade policies have been dictated by powerful multinational corporations whose flag is not red white and blue, but green with a dollar sign. Our nation is approaching a $500 billion trade deficit, which represents a genuine threat, not only to our economy, but to our Democracy. Global corporations have used the United States to help create a multinational trading arrangement which denies both American workers and workers of other nations the protections of basic labor law. NAFTA and the WTO were written specifically to preclude the enforcement of rights to organize, collective bargaining, strike, rights to safe work place, and right to a secure retirement. This enabled corporations to move jobs out of America to places where workers have no protections. NAFTA and the WTO have facilitated a race to the bottom in terms of wages and workers rights generally. The WTO essentially locked in the NAFTA trading regime by making any attempts to modify the basis of trade WTO-illegal.

The question is not whether or not America trades with the world, the questions are what are the rules of the game. And America is claimed by rules which are rigged against us. I have said that I will cancel NAFTA and the WTO in order to return to bilateral trade, conditioned on workers rights, human rights, and environmental quality principles being written into our trade agreements with other nations. The is the only way that we can stop corporations from coercing wage concessions or breaking United States unions. This is the only way that we can re-empower the hopes of people of all nations for a better standard of living and for control of the institutions of their own governments.

This issue reflects not mere differences of opinion within our party but a great divide. On one side of the divide stands global corporations and their political supporters. On the other side stands workers and their supporters. I stand resolutely with America's workers and with those peoples of the world who are also striving for human dignity. I will continue to challenge all other Democratic candidates on this issue to see whose side they stand on so that the American people can clearly see whose side they're on. It's not enough to say you're going to fix NAFTA and the WTO, the only way to fix it to exercise the withdrawal provisions of both laws and return to bilateral trade, conditioned on workers rights, human rights and environmental quality principles.

Dennis J. Kucinich
Philadelphia, Pennsylvania

This entry and my personal blog are licensed under a Creative Commons License.

I was reading Gilmore's reply to Lessig's earlier post and the conversation it stirred, and it moved me to share some of my own experiences with our fellow bloggers.

I have to admit to a feeling of resentment at the extent of the security searches every time I travel by air. The armed guards, the x-ray machines, the metal detectors, the pat downs, the search of luggage and personal effects, the removal of shoes, and for some, I suppose, the explanation of prosthetics, pacemakers, and appurtenances, constitutes a massive invasion of privacy. We have just come to accept this as a natural state of things because, like Gilmore, we're all suspected terrorists. I find myself having to explain to people why I, as a Presidential candidate, am repeatedly shuttled off to that special line of selectees identified by the SSSS stamped on my ticket. The transportation security agents inform me that a computer has made this decision. I want to know who programs the computer. Is it John Ashcroft?

Even though I don't feel as though I'm getting special treatment or that I'm entitled to special treatment, it makes me wonder how much of a threat I must be since I really do intend to replace the entire government. So when people occasionally recognize me getting the magic metal detector wanding and dutifully submitting to searches of my person, extending my arms and my legs spread-eagle, I explain with a smile, "I'm running against George Bush."

What I've been able to determine from an informed intelligence source (oxymoron) is that I tend to get selected because I buy one-way tickets. This poses a dilemma. Should I change my campaign and do round trips say in a continuous loop from Seattle, Washington to Washington, DC in order to avoid greater suspicion or do I plan a practical itinerary from Seattle to San Francisco to Austin to Oklahoma City to Des Moines to Cleveland to Manchester and gain near public enemy status? The real reason that people who travel point to point instead of round trip are more likely to be subjected to a search is because, I'm told, that the hijackers bought one-way tickets. This is an interesting type of profiling that goes on. One which seldom invites an iota of self-reflection about America's role in the world or about the basis for the murderous grievances which misguided individuals may have against us. It would be useful to have a national dialogue about our democracy and the manner in which it has been undermined since 9/11. The alternative is to proceed, robot like, and submit to metal detectors, x-ray machines, magic wands, pat downs, and the shuttling of point to point travelers to a point by point inspection.

It seems to me that the Bush Administration, with its moral obtuseness, its inconscience on matters of civil liberties, and its craven attempts to demolish the Bill of Rights has prepared for the American people a one-way ticket of sorts. When it comes to the quality of our democracy we are traveling on a road to nowhere.

Airline security is, as we have learned, a deadly serious business. The traveling public deserves assurances that they and their loved ones will be safe in the air. But when does security in a democracy morph into something profoundly anti-democratic. This is a discussion we need to have. And the answer, as Gilmore knows, cannot be simply "search me?"!

Dennis J. Kucinich
On the road to Des Moines

This entry and my personal blog are licensed under a Creative Commons License.

I thought it would be appropriate in Lessig's blog to discuss what led to my adoption of the Creative Commons License and the GNU General Public License for our work on the Kucinich presidential campaign.

As a good friend of many artists and engineers, I understand and support their need to make a living. As a father, I don't believe our government has any business locking up kids for sharing files on the Internet. As a Congressman, I have taken an oath to uphold the Constitution of the United States, which states very clearly in Article 1, Section 8, that "The Congress shall have Power: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

"Yes, we did produce a near-perfect republic. But will they keep it? Or will they, in the enjoyment of plenty, lose the memory of freedom?" -- Thomas Jefferson in a letter to John Adams

The framers knew the importance of the progress of science and useful arts. Their intention was clear. Unfortunately, corporate interests have intruded on our process of government. The overwhelming influence of political money from corporate interests has corrupted the ability of Congress to protect science and the arts. Today, much of our science and useful arts is coming forth from sources independent of monopolies, thanks to people like you. Yet Congress continues to try to limit certain activities of inventors and artists in order to preserve corporate power and domination. We must, once again, move to reclaim the promise inherent in Article 1, Section 8.

In my case, I have chosen the free content and free software licenses because I believe they will promote these important goals better than more restrictive "proprietary" licenses. On my presidential campaign, we are currently developing a policy requesting that our supporters license their works to us and others under free license as well. This is valuable because it will provide a body of work to be used by grassroots activists to create their own tools to promote individual and community based expressions of democracy. For example, anyone will be able to take photos, video, audio, or software and reuse it to create their own materials -- without hiring an attorney to negotiate rights (sorry Larry). In this spirit, feel free to rip, mix, and burn my work here.

This is what the American Revolution was all about!

Dennis J. Kucinich
Des Moines, Iowa

This entry and my personal blog are licensed under a Creative Commons License.

With and estimated 50 million Americans and Canadians left without power and in some cases water, common sense requires us to reflect on the absurdity of deregulation of public utilities. In the first case, the right of utility franchise is vested in the people. We give utilities permission to operate, and enable them to set up a profit making business in exchange for the promise of affordable and reliable service. In 1992, investor owned utilities pushed the Democratic House to pass HR776 which granted electric utilities broad powers. The bill was supposed to restructure the electric utility industry to spur competition.

Utilities used deregulation to effect a series of mergers limiting competition. In order to accelerate profits, cost cutting ensued, involving the layoff of thousands of utility company employees, including some who were responsible for maintenance of generation, transmission, and distribution systems. A number of investor-owned utilities stopped investing in the maintenance and repair of their own equipment, and, instead, cut costs to enhance the value of their stock rather than spending money to enhance the value of their service.

A prime case in point is FirstEnergy Corp, late of Ohio. FirstEnergy formed through a merger of utility companies which owned nuclear power plants which often were neither used nor useful, and as a result incurred huge debt. FirstEnergy's predecessor, The Cleveland Electric Illuminating Company (CEI) in the 1950s and 60s was a high performing blue chip stock until they invested in nuclear power. FirstEnergy has tried without success to keep online a very troublesome nuclear power facility at Port Clinton, Ohio, the Davis-Besse plant. Davis-Besse is currently shut down and has been for some time. FirstEnergy and federal regulators failed to properly monitor the operations of the plant, resulting in conditions where the plant's reactor vessel was threatened with a breach when boric acid ate into the head of the reactor.

When I was growing up, Dennis Kucinich was something of a political hero. I was in high school when he was elected mayor of Cleveland -- the youngest mayor of a major city ever. I was also very involved politically. I say "something" of a hero, though, because then I was then a right-wing loon (chairman of the Pennsylvania Teen-Age Republicans, youngest member of a delegation at the 1980 GOP convention). I admired his drive and strength of character; I had little patience for his politics.

I've grown-up a bit in the last 25 years. I'm now, well, not a right-wing loon, and now not at all involved politically. But I am still an admirer of Dennis Kucinich -- indeed, now more than ever. I don't (yet?) buy the anti-free trade stuff. But his is a powerful and right voice in this amazing election.

I am of course a bit biased by his embrace of Creative Commons -- which has been a part of his blog from the start. But the test for me is always character, and the measure of character for me is whether someone can say what's right, regardless of consequence, just because he believes it is right.

This is Edwards defending affirmative action in North Carolina; this is Dean opposing he war. This is Kucinich, here and elsewhere, articulating views that he believes right, whether or not they are views that will win him favor.

The post about Gilmore was the example here. I have been astonished by the debate around that event. It made me realize how that there are two sorts of people out there when it comes to civil rights. The question that divides us is not whether we believe in civil rights -- obviously, everyone (interesting) does. The question is how we believe in civil rights. (1) One sort believes that when someone else acts -- either intentionally or carelessly -- to infringe a right, it is right (or even maybe a duty) of the person whose rights have been wronged to defend the right regardless of consequence. (2) Another sort believes that when someone else acts -- at least carelessly -- to infringe a right, the right thing to do is to decide whether, all things considered, it makes sense to defend the right.

Type two sorts are the majority of us. We're the "reasonable" ones. Apple doesn't make commercials about us. We do what everyone would. I'm sure in the right context, I would have to fight all of my instincts to resist being a type two sort. There have been a couple times in my life when I have succeeded, but just a few.

Gilmore is type one -- in this context, and many others. (He once, for example, scolded my wife for inviting him to a party with an Evite because it was wrong, he believed, to demand he give up his privacy just to respond to an invitation.) And while I don't agree with the underlying values that he sometimes pushes (for example, I not only thought it wrong for him to scold my wife, I think Evite is great), I do admire the ability to be type one in a world of type two's -- especially when I agree with the underlying value (as I do w/r/t the British Airways incident).

Thus, I agree with Kucinich, Gilmore is a patriot. At a time when reasonableness by those in power must be taught, his was a patriot's act (unlike the other Patriot Act). And I admire Kucinich's willingness to say that here -- in a space where some of the most well reasoned contributors (and some others as well) have strongly taken the other view. This is the (only) part of Reagan I continue to admire; it is the part of Kucinich I increasingly admire; it is the part in these candidates we should all respect: the willingness to say what's right, regardless of consequence.

Thank you, Congressman, for taking time in this space. And thank you for the character of your campaign.

So the legislative fight against spam is going no where. There will probably be a bill, but it has been designed simply to make sure that large traditional companies are still free to send unsolicited commercial email. Senator McCain has added a nice innovation that will make it easier to hold people responsible for UCE. But the concerted effort to avoid labeling will mean in the end, the legislation does not work.

Which has led me to a bit of code which I had intended to resist: challenge-response. My mail now goes through Mailblocks.com (which annoyingly has a pop-up to warn people away from any browser except Microsoft's, and which even more annoyingly is enforcing patent protection against other challenge response systems) but so far, it has worked.

"Worked." "Worked" means I don't have literally hundreds of emails in my inbox each morning that are junk. "Worked" means I don't therefore have to delete 95% of the emails in my inbox because they are junk. "Worked" means I therefore don't erase emails which were not junk but which one inevitably will when so much is junk.

But "worked" also means that the first time you (humans out there, not bots) send me email, you've got to go through a web-based ritual to authenticate that you're human. Of all the mandated authentication our society requires these days, this seems about the most harmless. Indeed, it might even help.

I've been talking to a bunch of people about blogs and their effect for a book I'm supposed to be finishing this week. This is an interview with Governor Dean's campaign manager, Joe Trippi. Feel free to use it as the Creative Commons Attribution license permits. And corrections appreciated.

(pdf)

Even Julius Caesar uses a Creative Commons license.

Lawrence Solum on "Copynorms", the "informal social attitudes about the rightness or wrongness of
duplicating material that is copyrighted." Is there a convincing account of the source of these norms?

So a bunch of people in San Francisco (with Brewster Kahle, who's behind all great ideas behind it) are building a free wireless network for the city, called sflan. My wife's and my house is to be sflan16, and last weekend the team came to the house to install the antenna.

Our house has just undergone major renovations (a 9 month project which is 6 months late; the other 9 month project is humming along just fine with eta 2 weeks), and we included in those renovations a conduit from the roof to a server room in the basement.

But when we tried to run the Ethernet cable from the roof to the basement, we discovered that the conduit makes 3 90-degree turns and one 45-degree turn, and it was not at all clear how one pushes a cable through such a maze.

So of course we turned first to the internet. I typed in a totally natural language question into Google (which I find these days is increasingly the best method): something like "how do you thread a cable through a long conduit with 90 degree angles." The first post that came up was a thread from some list titled Threading fiber through a long conduit. This thread reported no good luck, but it had the kernel of an idea: a vacuum cleaner.

So we took a bit of foam, tied it to the end of a roll of kite string, and connected a small Shop-Vac at the other end of the conduit (which is at least 50 feet long). Bingo. The key, it seems, is to have a big but light obstruction, and google at hand.

One of the most frustrating aspects of Eldred was the crudeness, in many places, of the legal anaysis by the government, and courts. Distinctions that should have been important were ignored or glossed over. Arguments making distinctions that should have been important were just glossed over.

It is therefore extraordinarily encouraging to read this by the Court of Federal Claims in the case of Figueroa v. US. Judge Futey is exceptionally careful and subtle in his analysis of the claim about patent fees. I don't know enough about the non-Eldred parts here, but the constitutional analysis is very well done.

I don't even know how to begin this story, so stupid and extreme it is.

The World Intellectual Property Organization (WIPO) was convinced by Jamie Love and others to hold a meeting about "open collaborative models to develop public goods." One of those models is, of course, open source and free software. Lobbyists for Microsoft and others apparently (according to this extraordinary story by Jonathan Krim) started lobbying the US government to get the meeting cancelled. No surprise there. Open source and free software is a competitor to MSFT's products. Lobbying is increasingly the way competition is waged in America.

But the astonishing part is the justification for the US opposing the meeting. According to the Post, Lois Boland, director of international relations for the U.S. Patent and Trademark Office, said "that open-source software runs counter to the mission of WIPO, which is to promote intellectual-property rights." As she is quoted as saying, "To hold a meeting which has as its purpose to disclaim or waive such rights seems to us to be contrary to the goals of WIPO."

If Lois Boland said this, then she should be asked to resign. The level of ignorance built into that statement is astonishing, and the idea that a government official of her level would be so ignorant is an embarrassment. First, and most obviously, open-source software is based in intellectual-property rights. It can't exist (and free software can't have its effect) without it. Second, the goal of WIPO, and the goal of any government, should be to promote the right balance of intellectual-property rights, not simply to promote intellectual property rights. And finally, if an intellectual property right holder wants to "disclaim" or "waive" her rights, what business is it of WIPOs? Why should WIPO oppose a copyright or patent rights holder's choice to do with his or her rights what he or she wants?

These points are basic. They should be fundamental. That someone who doesn't understand them is at a high level of this government just shows how extreme IP policy in America has become.

The thread about Ms. Boland's (mis)characterization of open-source software (remember the days when statements were either true or false?) reminded me of an odd fight I found myself in the middle of at the World Summit on the Information Society (WSIS) in Geneva in February.

I was asked to give one of three keynotes launching the second preparatory conference. At a press conference before the keynote, a reporter asked what I was going to talk about. I indicated vaguely I would discuss the importance of the public domain to innovation, etc. (same old boring stuff). But I was then astonished when the moderator of the event, Maria CATTAUI, Secretary-General of the International Chamber of Commerce, scolded me that issues of "intellectual property" were not to be discussed because they were "exclusively" the concern of WIPO.

I promptly threw away the talk I had intended to give, and gave a completely different talk about how -- Ms. Cattaui's scolding notwithstanding -- it was crucial that a summit on the world "information society" consider the role of the public domain in spreading knowledge and culture even if WIPO claimed exclusive jurisdiction of the matter. That assured I won't be invited back to WSIS anytime soon (or at least by Ms. Cattaui).

It is therefore extraordinary now that people purporting to speak for WIPO would say that WIPO too is not to consider issues about the public domain. Neither at WIPO, nor at WSIS, nor apparently anywhere. Except among us commies I guess. (Fellow travelers, for our next secret communist meeting, be sure to read the latest great work by some of the most prominent IP commies out there. Linked here.)

Tony Auth is a favorite cartoonist of mine. In 1981, he drew a cartoon in response to the 9th Circuit Court of Appeals' decision in the Sony v. Universal case (the Betamax case). In that case, the Court of Appeals had held that the VCR was an infringing technology. Auth's cartoon captured the silliness of this perfectly: In a single frame, there was a VCR and a handgun, and the caption read (something like) "Which of these is illegal in California?"

I'm trying to clear permissions to use this cartoon. The people who handle Auth's rights can't locate the cartoon I'm speaking of. Does anyone have a memory of seeing this somewhere?

Deanlink is a cool new tool for identifying others around you who might be into the politics of your flavor. I love these examples of new technology to achieve what old organization was supposed to achieve. Are there other good ones?

So like bored guests at a dinner party, everyone seems keen to change my subjects. (If I believed in smileys I'd insert one here, but I don't.) So ok, let's talk about what YOU want to talk about.

As you likely know, the Supreme Court of California has held that a preliminary injunction in a trade secret case does not necessarily violate the first Amendment. The decision was in the context of deCSS code that enabled the decryption of CSS protections for DVDs. The opinion is here and worth a read.

Two points, one annoying and one important.

Annoying first: Gaggles have written me asking how is it that if "code is speech" the First Amendment doesn't guarantee that code can't be regulated? This is an argument that has been around for a long time, and its staying power is something I don't quite get. Sure, code is speech. But why do you think speech can't be regulated? Mickey Mouse is speech. But just try posting copies of Mickey Mouse films without Disney's permission, and you'll see how far that gets you. The truth is, the Constitution notwithstanding ("Congress shall make no law..."), Congress (and states) make law all the time regulating speech. Thus, calling it speech is just a first step in the analysis. The real question is what burden the government must bear in justifying the regulation.

Important second: The court assumed a bunch of important facts. In particular it assumed:

"First, the court concluded that the CSS technology contained protectable trade secrets because it derived independent economic value from its secrecy and because DVD CCA made reasonable efforts to maintain its secrecy. Second, the court found that Johansen had obtained these trade secrets through reverse engineering in violation of a license agreement and therefore acquired these secrets by improper means. Third, the court found that the defendants, including Bunner, knew or should have known that Johansen acquired these trade secrets by improper means when they posted DeCSS on their Web sites. Fourth, the court held that the trade secret status of the CSS technology had not been destroyed because it had been posted on the Internet."

But the Court goes on to say (unanimously) that it was wrong for the District Court to simply assume these facts. Indeed, it was the duty of the District Court to independently determine whether each of these facts was true. If any of these facts is not true, then as a matter of trade secret law, there is no right to a preliminary injunction.

The recording industry has been strongly opposed to a statutory or compulsory license for digital music (not the Internet radio kind, but a reasonable kind that would enable the spread of digital content). They object that "the market" should set the rate for music, not a federal statute. (Of course, they have no hesitation appealing to the statutory rate for damages, as opposed to the ordinary market measure for damages, when it comes to a breach, but that's a separate matter).

But the history here is fun. Here's a quote from a 1967 House Judiciary Report, considering a modification to the law as it existed then:

[T]he record producers argued vigorously that the compulsory license system must be retained. They asserted that the record industry is a half-billion-dollar business of great economic importance in the United States and throughout the world; records today are the principal means of disseminating music, and this creates special problems, since performers need unhampered access to musical material on nondiscriminatory terms. Historically, the record producers pointed out, there were no recording rights before 1909 and the 1909 statute adopted the compulsory license as a deliberate anti-monopoly condition on the grant of these rights. They argue that the result has been an outpouring of recorded music, with the public being given lower prices, improved quality, and a greater choice.

"The result has been an outpouring of recorded music, with the public being given lower prices, improved quality, and a greater choice."

Nicely put.

(Thanks to Glenn Brown for drawing my attention to this report).

Ed Black of the Open Source and Industry Alliance has written Ms. Lois Boland a very nice and good letter about the recent statements about "open source."

Meanwhile, there's much reporting that Microsoft is behind the lobbying to kill the WIPO meeting. I don't know anything about that (for some reason, I've been removed from Mr. Gates' lobbying-strategy list). But it is useful to contrast the sophisticated, moderate, and well-informed work of Microsoft's GC, Brad Smith, about "open source" software, recently published in a Joint AEI/Brookings book.

In addition to Ed Black's letter, and perhaps letters from you, she might find Brad Smith's essay useful.

The battle against software patents is coming to a head in the EU. (Not that much of the support for software patents has come from the head.) As these articles (News.com, TheRegister, and Slashdot) describe, the battle has become quite heated, with the side of right not expected to prevail.

A large number of F/OSS-related sites are shutting down because of the move. See, e.g., Gimp. And those amazing Europeans are actually marching in the streets about this threat to the freedom to innovate.

That there is a threat would be more obvious to WIPO and the US government if it didn't spend its efforts working to remain ignorant about the importance of balance in intellectual property law. But I understand, they're very busy, those regulating sorts. So here's perhaps the most concise and compelling account of just why software patents will harm new innovators (that's you Europe) and benefit old innovators (that's America), written in 1991 by Mr. Gates:

"If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete stand-still today. The solution . . . is patent exchanges . . . and patenting as much as we can. . . . A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high: Established companies have an interest in excluding future competitors." Fred Warshofsky, The Patent Wars 170-71 (NY: Wiley 1994).

Perhaps the F/OSS sites should take more advantage of this unique opportunity for them to quote the wisdom of Mr. Gates.

The Stanford CIS has been working on a case for a long time to establish the public domain status of Peter Pan. (The Internet has apparently already recognized it. Check out the Google search on Peter Pan). We represent a Canadian author, Emily Somma, who has written a sequel to the public domain portions of the Peter Pan story, called "After the Rain." Somma was threatened by the rights holders of the Peter Pan-related work still under copyright. The essence of their claim is that so long as anything Peter Pan related is under copyright/trademark protection, everything is. (The rights holder is a children's hospital in England, which has meant (1) that service of our complaint has been severely delayed by the UK government, and (2) that we get lots of nasty letters from people who think a charity should have the right to do whatever it wants so long as it benefits children. I'm all for charities, and especially for charities benefitting children, but threatening an author who is simply building upon the public domain is not the stuff a charity should be doing.)

ANYWAY, while practicing my Danish (not really: I am totally language illiterate) I came across another wonderful example of this increasing practice.

According to this story, there's a Danish character called "Gummi-Tarzan" (I think this is an image) that has been forced to drop "Tarzan" from its name by the ever-pleasant Disney Corporation. This because Disney believes it owns "Tarzan." This because Disney has trademark protection in a bunch of Disney work that builds upon Edgar Rice Burrough's "Tarzan," even though Burrough's Tarzan originates from 1914, and is therefore within the public domain. Nonetheless, from now on, Gummi-Tarzan must be referred to as Gummi-T.

The public domain was supposed to be a lawyer-free zone. So much for how things were supposed to be. (Thanks to Joergen Ramskov and Thomas Wesley Hinton for porting the story into a form that the I could understand.)