Lessig

Willem is a month old today. It has been an extraordinary month. I apologize for the absence, and am astonished by the kindness in the comments to my last post. Thank you.

But it's time to restart this space.

Judge Stanley Birch provides the perfect incentive. Howard Bashman has a wonderful interview with Judge Birch, in the course of which he offers "With all respect, Eldred was wrongly decided."

Thank you, Judge. It's nice to be back.

I was, at least. The recall provision is still stupidly crafted. But the results last night are as a democracy should be. A clear majority voted to recall the governor. And more people than supported Davis voted to elect Arnold Schwarzenegger.

He wasn't my first choice. But it is interesting that the two top candidates "started" their life in the US in poverty. Anyone who gets as far as either did deserves our respect. And we Californians can hope that some of the benefit of the hard work and luck that has marked Mr. Schwarzenegger's life might now pass to California.

Creative Commons has launched a series of technology challenges that we invite anyone to tackle. That mirrors the artistic challenge of our Moving Image contest. More soon.

Dave Winer has remixed the "code is law" meme. Nicely, unsurprisingly.

On Monday, the 9th Circuit decided that the FCC was wrong in classifying a "cable modem service" as an "information service," and thus exempting it from any common-carrier-like obligations. This is a very important decision in the ongoing battles about preserving end-to-end neutrality on the Net.

But meanwhile, there's a very tricky game being played with the Internet Tax Freedom Act which might make the whole 9th Circuit issue moot. Someone has slipped a nice little change into that statute that potentially could exempt any broadband service from any common carrier obligations. The legislative history is being puffed up to say this won't be the effect. But the language of the change has many concerned (and no doubt some filled with glee) that this fundamental policy issue will be decided by a slip of the hand in a totally unrelated bill. As one critic writes,

If Congress adopts the bill in its current form and it becomes law, it will be cited as "evidence" that it was Congress' intent to treat the transmission services used to provide Internet access differently than those transmission services not used for Internet access, and more precisely that Congress intends the underlying transmission service to be treated the same as the Internet access service. (not subject to Title II in the DSL and cable modem proceedings) Moreover, it will be used to argue that Congress supports the FCC's revisionist "telecommunications is subsumed into information services" approach that serves as the basis of the FCC's cable modem and wireline DSL proceedings.

I've been experimenting with Apple's mail client, "Mail" (note to product development: generic names make it very hard to search on product specific information), and have been frustrated that an obvious function is not in Mail (or any other client I've seen).

The obvious function is the ability to define a hot key that will move a message to a specified folder. I had built (and had built) tools in Entourage to enable me to hit, say, ctrl+f, and the highlighted message(s) would be moved to the friends folder. I know you mice-on-the-brain sorts like to do that with the (insanely inefficient) drag function, but I like keys.

Anyway, I asked coder Jonathan Nathan whether he could help me out on this, and he put together a couple cool little Applescripts that get close. (He's GPL'd them here).

The hard coded version lets you code in the name of a folder. The variable gives you a list of folders to toggle through. Both require a keyboard utility to invoke the script. And both face a similar problem: Sometimes the utility will "forget" which message is highlighted so it forgets which message to highlight next.

Both problems come from the relatively immature stage of development that "Mail" is in. Interestingly, in MS Entourage you could invoke a script from the keyboard without a utility, and it had no problem remembering where it was on list of messages. (It's also relatively easy to find information about "Entourage" on the web.)

Thanks to Jonathan Nathan for his free (as in beer and as in speech) code. Any ideas to tweak it would be appreciated.

An FCC commissioner who gets it — read here, and spread the word.

This is good news (ok, not for Halderman but for the law). SunnComm says it is suing Alex Halderman (Ed Felten's student) because he posted a paper pointing out the weaknesses in SunnComm's copy-protection software. I'm sure there will be a world of legal support to help Halderman establish what should be an obvious point: tell the truth is not yet a crime, and (fortunately for most professors) writing even wrong papers is not either.

UPDATE: Oh well. Looks like SunnComm has come to its senses. No lawsuit after all.

Using machines to coordinate sharing content -- that's what this site is doing. And what they are doing is totally legal. Yet if the machines actually copied the content they shared, what they are doing would be a felony (according to some in the content industry). Does this trigger make sense?

It is so rare that I am in 100% agreement with the Cato Institute, but there have been important examples in the past (Eldred). Here's another. There's a great essay by Doug Bandow titled "Don't Ban Technology to Solve Copyright Problems," which appeared in the Washington Times but is not yet on Cato's site here. Stay tuned, and stay right (as in correct) Cato.

So imagine this: An employee works for a software company. He discovers a problem with the software, tries to warn the company, but it does nothing. He quits, and then sends email to all the customers of the company, informing them of the security problem with the software. The flood of emails brings the email server down for a bit, but that admittedly does not cause significant damage. Nonetheless, the employee is criminally prosecuted for causing an "impairment to the integrity" of a computer system (by revealing its flaws) which resulted in more than $5,000 in damage (because now it was known to be flawed).

The employee is found guilty. He is sentenced and serves (yes, he actually serves) 16 months in a federal prison.

In America, you ask? Well, in fact, yes -- justice in the Central District of California. But it gets better.

On appeal, the employee retains Jennifer Granick, executive director of Stanford's Center for Internet and Society. She argued the obvious point: it can't be "damage" to tell the truth about some company's software -- however ugly that truth might be.

Today the government agreed. In an extraordinary (and extraordinarily rare move) it confessed error. "On futher review," the government wrote, "in light of defendent's arguments on appeal, the government believes it was error to argue that defendant intended an 'impairment' to the integrity of [X's] computer system." The government asked that the conviction be vacated.

"In light of defendant's arguments on appeal."

Indeed, America: Where defendants sometimes get great lawyers, and where governments let justice admit it is wrong.

I am proud, and moved, by both.

There's a nice piece in the Wall Street Journal's E-Commerce Special "E-Commerce" Report about Creative Commons. The report describes three futures for copyright, with CC among the three. (The WSJ charges $350 for the privilege of linking to a web version of an article about your company, so rather than link, I'll just describe the article (Does this really making you better off, WSJ?)).

The coolest part of the story is the first announcement of Creative Commons' Sampling Licenses which will be launched in Brazil by Brazil's culture minister, and cult figure, Gilberto Gil this December.

The Sampling Licenses say "sample my work if you want, even for commercial purposes, just don't copy and sell my work without my permission." It's aim is to make explicit what whole genres of music presume -- at least until you become famous. The idea was brought to us by Negativland and People Like Us.

Stay tuned for more about the release.

Gregg Easterbrook wrote something on his blog that Roger Simon criticized for being anti-Semitic. It was also, as Glenn Reynolds points out, anti-Disney. The consequence of his writing was that Easterbrook was fired from ESPN (which is owned by The Mouse). Was the cause the anti-Semitism or the anti-Disney-ism?

As one of Easterbrook's self-described "harshest critics" says, the firing was an over-reaction. I agree, though more because of the place than the substance of what Easterbrook said. Had Easterbrook been the announcer at a football game and made similar comments, I could well understand (and defend) ESPN's decision to fire him. But a post in a blog is not a blast to 20 million people. No one would hold ESPN responsible; no one, so far as I can see, was even drawing a link to ESPN.

This leads Glenn Reynolds to suggest that it is another example of the consequences of the MediaCon.

Glenn has a point. ESPN's actions are ambiguous, at least if you agree with Roger Simon that firing Easterbrook was an over-reaction. ESPN should resolve the ambiguity.

If ESPN fired Easterbrook because it overreacted to his comment, then that's an injustice to Easterbrook, and a slight to society.

But it it fired Easterbrook because Easterbrook criticized the owner, that's an offense to society, whatever the injustice to Easterbrook -- at least when fewer and fewer control access to media. No doubt, anti-semitism has done infinitely greater harm than misused media mogul power. But if firing your critics becomes the norm in American media, then there will be much more than insensitivity to anti-semitism to worry about in the future.

As Michael Geist writes, it is increasingly the practice of the US government to export its copyright policy though bi-lateral trade agreements. One example is the trade agreements being concluded with Australia right now that will require Australia to increase its copyright term to life plus 70.

The Allen Consulting Group has prepared what it apparently considers an economic analysis of the proposed Term Extension. The report was commissioned by the Motion Picture Association, among others. The report is embarrassingly poorly done.

I describe some errors in the extended entry below. But I hope for the Allen Consulting Group that this report is not representative of its work in general.

Jim Garrison writes to report the launch of a project that uses my three favorite things (THINGS): free software, Creative Commons licenses, and RDF. Gnomoradio.org will "create an online network where artists can promote and share their music freely and willingly." As its announcement explains, it is built on gpl'd software, and gives artists the ability to generate "an Internet address (a URL) that will point to information about the song, a machine-readable license, a method of verifying the downloaded song, a link to the artist's web site, and information about purchasing any available recordings of the song." More discussion.

Let free compete with controlled, and let's see who wins.

So people need to write Congresswoman DeGette. They need to tell her that she's wrong on the facts. Here's her Orwell-wanna-be description of the history of the internet, penned for news.com as an attack on "Network Neutrality." As Ernie Miller writes, her cable-lobbyist screed even attacks the end-to-end principle.

Is there no shame?

You can send comments here.

David Brooks' column in the Times is an interesting reflection on the battle for the soul of the Democratic Party. Edwards' is said to have the most "persuasive theory" for pervasively interesting reasons.

Open Studios is a non-profit that helps rebuild the public domain (with creative work contributed through Creative Commons licenses). It has announced Song Storm, which is a play list contest. Thanks to Tom Poe for pushing both.

Thanks to Timo Hannay for pointing me to a reason to hope about WIPO. While he sees this as hypocrisy, I see it as a good news: regardless of its unwillingness to hold a meeting about the value of "open collaborative models for producing public goods," within WIPO itself, open source and free software lives.

Having failed in the Congress, the content industry is now pushing the FCC to take action to mandate the broadcast flag. This bit of government regulated code is a mistake. By imposing a requirement (effectively) in the middle of the network, the broadcast flag will break all sorts of innovative new applications. By permitting only "tamper-resistant" technologies, it will effectively ban all sorts of free and open source projects. Thus, two of the key parts in the history of internet innovation -- end-to-end and free and open source software -- are regulated away by this.

And for what? There has been no showing that this technology mandate is needed. The movie industry (unlike the recording industry) has deployed great new technology (the DVD) that effectively competes with free. (Anyway, apparently according to Jack Valenti the real pirates of the movie industry are members of the Academy.) This is a classic example of regulate first, and ask questions later, and a perfect example of how not to regulate the internet.

Please follow here and do something about this mess. To read more, check out Jonathan Krim's piece in the Post.

Check out this story published online at Wired before in print about Amazon's amazing new searchable book archive. Amazingly cool.

This brilliant idea from MIT (using the cable network to distribute analog content, and thereby taking advantage of the existing analog blanket licenses covering music) has been in the works for some time. Note that most universities could take advantage of this, as most universities have a blanket license for music distributed on campus. So long as there's an analog link, at least. Or, alternatively, if Congress were to change the law so that digital had the same rights as analog, or perhaps, digital with an analog decay, then bingo, "piracy" at universities would disappear.

So Diebold has hit new lows. After threatening anyone who posts information necessary to evaluate the claimed failure of their vote-counting machine, apparently Swarthmore is now caving to DMCA threats by forcing students to shut down mirror sites. Just the strategy for a company that's trying to convince the world that they can be trusted with vote counting.

Thanks to Ernie Miller.

So many thought Mr. Valenti's move to ban the distribution of Oscar nominated films on DVD was about reenforcing the power of the major studios. Maybe. But as I suggested, and as Stefan Bechtold reminds me, there's actually great data to support the idea that the movie piracy problem emergers with "insiders." See this empirical paper by people from AT&T (including Lorrie Cranor). Maybe the MPAA can get the RIAA to prosecute these "insiders" for them?

Joi writes about a song that Shannon has written for Ben and Mena. (lyrics) (mp3). Brilliantly done. Best of all, unlike "Happy Birthday," because this is under a Creative Commons license, you're free to sing it wherever you want.

So GNOME Desktop News has a great story about a project to build a comprehensive package of world flags in SVG format. The flags are then donated under a Creative Commons Public Domain license. The call for these flags went up Saturday. So far, there are 130 flags contributed. To see the flags so far, look here. Very cool.

Now the FTC too is worried about bad patents.

Ed Lee was a key lawyer in the Eldred case, and is now a professor at Ohio State. Welcome to blogland, Ed.

MoveOn.org has announced a "political advertising contest" for the best ad that "tell[s] the truth" about President Bush. I take it that "the truth" could be for or against the president, but all submissions must be CC.

The Copyright Office just released its report (pdf) on exemptions from DMCA restrictions. There's good news and bad news. Let's start with the good. The Office granted four exemptions. One of the four was an exemption for censorware. This exemption was argued for strongly by a number of people, but none argued it more effectively than Seth Finkelstein. Based largely on his testimony, "compilations consisting of lists of Internet locations blocked by commercially marketed filtering software applications that are intended to prevent access to domains, websites or portions of websites, but not including lists of Internet locations blocked by software applications that operate exclusively to protect against damage to a computer or computer network or lists of Internet locations blocked by software applications that operate exclusively to prevent receipt of email" are exempt from the DMCA.

I've been an admirer of Seth's work for a long time, and as this shows, with good reason. Thanks, Seth.

I've been an admirer of Senator Edwards for sometime now. Next week, he'll be guest blogging here. I know he has a number of issues he wants to discuss, and in the comments here, feel free to suggest others. But I'm honored to welcome him. As I've written, there is an integrity and passion to Senator Edwards in person. This campaign could use more of that.

Mark Cooper, of the Consumer Federation of America has published a new book, Media Ownership and Democracy in the Digital Information Age. The book can be purchased at Amazon (link to come), or it can be downloaded for free under a Creative Commons license.

Tim Berners-Lee's W3C has filed comments before the USPTO about the burdens of patents. Maybe the FTC's been reading USPTO briefings again?