Lessig

Bravo, Senator. Edwards is a brilliant choice.

Last month I wrote about the DRM-encumbered Constitution. Note, this is not really Microsoft's doing -- they just build the bombs, others choose to use them. But a bunch have sent links to free Constitutions. Here's one for the iPod created by the American Constitution Society.

Word has it that the regulators in Washington are enamored of Professor (in the School of Computing) Hollaar's recent paper, Sony Revisited, and that it is in part responsible for Congress' current infatuation with the Induce Act. Professor Hollaar is a smart guy, and his paper is an interesting and well-researched examination of secondary liability in the context of copyright law. But if Congress thinks this justifies the Induce Act, then there is some deep confusion somewhere. I suspect there are two possible sources for this confusion.

(1) Hollaar discusses the scope of "inducement" liability in the context of patent law. There are some in Congress who seem to think that the Induce Act "merely" carries the same idea to copyright law. This is just a mistake. The scope of the Induce Act as written is far broader than the scope of inducing patent infringement as interpreted. And if "all" Congress wants to do is extend patent inducement to copyright law, then it should amendment the Induce Act to state precisely that. That would be a vast improvement over the existing proposal -- not enough to justify it in my mind, but it would make the harm it will cause much much less significant.

(2) Hollaar discusses the purpose and meaning of the Sony case. While his discussion is technically correct enough (though the idea that copyright is the right to protect a "business model" is really not right at all), imho, the Professor, and in turn, the supporters of the Induce Act, are really missing the point of Sony.

As everybody knows, Sony set the rule that when a new technology has the "potential" to support "substantial noninfringing use" of copyrighted material, the maker of the technology would not face secondary liability for copyright infringement.

But what no one (in Washington, at least) seems to understand is why Sony set that standard. It was not because the Supreme Court is filled with copyright infringers who wanted to encourage copyright infringement. It was instead because the Supreme Court was filled with judges not eager to engage in the complex balancing required to judge whether a technology creates more benefit than harm. As the Court stated:

Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials. Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology.

Why is that a great idea? Because (isn't this obvious to Republicans?) courts are awful, expensive, and slow institutions for judging the economic effect of new technology. Soviet planners with better lighting. And rather than bury innovators in years of litigation before their innovation gets to market, the Sony rule says: let the innovation go, if there is a potential for a substantial noninfringing use, and if Congress wants to regulate it more, then let Congress weigh the benefits of the technology against its costs.

Ignoring this extremely sensible separation of powers principle has already cost Silicon Valley dearly. See, e.g., ReplayTV. ReplayTV is the digital equivalent of the VCR. It does the job more efficiently, and it promised to do some things the VCR couldn't do, too. But under the principle of Sony (innovate first, regulate later), it should plainly have been allowed into the market without intervention by the courts. Yet precisely the opposite happened. Content owners sued ReplayTV. It was dragged into federal litigation for many many months defending its new technology. And before the case could be resolved, the company effectively declared bankruptcy.

Is this the future Senators Hatch and Leahy want for all new technologies that impact copyrighted material? Will every Apple be forced to defend its innovation in a federal court? Will federal judges become the arbiters of good technology? Will technology firms be forced to spend more on lawyers than on R&D?

Whatever the lobbyists say about this bill, this is the single most important fact that we should not forget: It is a lawyer employment act. It will force technologists into court before they get to enter the market place. It will shift responsibility for striking the balance in copyright law from Congress to unelected federal judges.

That's not a bad thing for me, or my kind. I, after all, think the courts have some role here (in setting the limits of copyright), and I, after all, make lawyers for a living. But for an already overregulated Silicon Valley, it is another nail in the coffin by the regulating-obsessed in Washington.

Ernie's beginning a list.

Thanks to the American Museum of the Moving Image, Presidential campaign television commercials throughout history.

So the New York Times ran a magazine piece about Robert Greenwald's latest political documentary, OutFOXed. Stanford's CIS and the great folks at Fenwick & West have been advising Greenwald (pro bono) about how best to exercise his fair use rights in making this critique of FOX News.

This clip gives you a sense of the issues we faced. And so you'll see how relieved I was to read Dianna Brandi's (VP for legal affairs at FOX) comment in the Washington Post: "People steal our footage all the time.... We generally sort of look the other way."

I take it she's referring to the fair use by others of FOX's footage, and if so, then bravo FOX. Fair use, of course, is not stealing, even though lawyers who know better like to use that false description as often as they can. (But if she really means FOX footage is being stolen, then that's awful. Get better locks, Fox.)

I actually knew nothing about FOX News before working on this film -- not much time for network news, and I had only ever heard Bill O'Reilly once, on Fresh Air. And while I came to the project with low expectations about any news network, I was still astonished. As you'll see when you buy the DVD or host a MoveOn.org house party, there's a lot to be amazed at. The most powerful is an amazingly unFAIR and unBALANCED clip with Jeremy Glick and Bill O'Reilly. Not unlike (but much worse than) the exchange Georgetown Professor David Cole described. (Washington Post).

As the Times article describes, Greenwald's style for distributing documentaries may be the beginning of something new -- political criticism, using interviews and clips, making a strong political point, distributed through DVDs and political action groups. (See some other examples here). On what theory does he, and others, have the right to use such material without permission? On the free culture theory we call the First Amendment: Copyright law must, the Court told us in Eldred, embed "fair use"; "fair use" is informed by First Amendment values; the values of the First Amendment most relevant here are those expressed in New York Times v. Sullivan. As with news-gathering, critical political filmmaking needs a buffer zone of protection against the overreaching of the law. And if the potential of this medium -- now liberated by digital technology -- is to be realized, we need clear precedents that establish that critics have the freedom to criticize without having to hire a lawyer first.

Watch the movie. Celebrate the freedom it represents. It is a particularly American freedom that we should celebrate and practice more often.

CC's got a great new newsletter that you can subscribe to here.

Creative Commons will be hosting a book party to celebrate Dan Gillmor's new book, We the Media, which (the good) O'Reilly is publishing, and which will also be available under a Creative Commons license. (They never got around to having a book party for my book. Oh well. They're busy.) The date is July 30, in the evening. More details soon.

Thanks to the folks at Variety, this is a pdf of my op-ed about Outfoxed, that ran in Variety. Text in the extended entry.

This story made me homesick. Lewisburg is about 30 miles from where I grew up -- Williamsport. The owner of a theatre there has invited card-carrying Republicans to see Fahrenheit 9/11 for free -- not because he thinks it a great movie ("both a fantastic film and a fantastically flawed film"), but because he thinks it important that people see it. That led the GOP county chairman from a neighboring county to call the owner and congratulate him -- not because he thought the film a great film ("intellectually dishonest as a documentary"), but because he wants to "encourage local Republicans to see the film so they can participate in an informed debate."

So many reasons to love Amazon and Google, but here's another. Robert Greenwald's film, OutFOXed, has been out for a week. It is the #1 ranked DVD at Amazon, and the first relevant "Murdoch" on Google.

Some ideas about how the news might improve politics.

Bravo to FOX for fighting the network control freaks. Competition over derivatives only makes the derivatives better.

"Is 'Fair and Balanced' ridiculous?" So opened the FOX News Watch segment examining Robert Greenwald's film, OutFOXed. And astonishingly, the uncontradicted view of FOX News Watch was "yes"! As Neal Gabler put it, "To say that this network promotes the Republican view ... is like saying that the Pope is Catholic. It's self-evident ... pretty much undeniable." But, he asks, as if he hadn't actually seen the film, "So what?"

So what? Well first, start with the question that opened the segment: Fox says it is "Fair and Balanced." If it is "self-evident" that it is not, then I guess we agree then that it is "ridiculous" to say that it is. And second, "obviously" media critics get this about Fox. Anyone who critically watches Fox gets this about Fox. But as one questioner at the San Francisco opening put it, for those who aren't media critics, and for those who don't actually watch Fox, just how "ridiculous" Fox's claim is is something significant. My bet is that a cross-section of FOX viewers would be surprised just how false Fox's claims actually are.

The discussion opened with Jim Pinkerton of Newsday calling the film "dull and didactic." He then asserted that the film says that media networks are "either worse than the Mafia that ran Cuba in the 1950s or worse than the Soviet Union." When I heard him say that, I understood why he saw the film as "dull and didactic": if this is his view, he didn't really watch the film. The opening allusion to the Mafia comes from Robert McChesney, where he compares how the Mafia carved up Cuba with how the government carves up media ownership -- nothing to do with the media being "worse than the Mafia." The allusion to the Soviet Union, also McChesney's, again had nothing to do with Pinkerton's claim. McChesney's claim was simply that propaganda is most effective when the audience is unaware -- unlike in the Soviet Union.

The other simple fabrication of Pinkerton was that the film comprised "two or three disgruntled employees." That's true if by "two or three" you mean seven (four listed here; three requested anonymity). But the more fundamental fabrication is the suggestion that the film's claims are based on nothing more than the word of "two or three disgruntled employees." The film has five independent sources for its "self-evident," as Grabler puts it, conclusion: (1) former Foxies, (2) Fox memos (unmentioned by anyone on the show), (3) independent studies of Fox viewers, (4) media commentators, and (5) clips from Fox shows.

Cal Thomas -- who was one of the people in the film -- found the film flawed because it "ignored the many Democrats I've had on my show." Again, not true. The movie never asserts that there are no Democrats, or liberals on the show. It just asserts -- not denied by Thomas -- that the "balance" is "unbalanced." Indeed, in one of the best parts of the film, Greenwald reports a media group that studied months of Brit Hume's "Special Report" and found over 80% of the guests on that premier show were Republican -- and that most of the Democrats were centrists. Not balanced, and not a fair picture of the facts reported.

Thomas goes on (with his wonderful announcer voice -- I love listening to him) to say something extraordinary however. Here's the quote:

"I think the reason that this network looks so Republican ... is by contrast on [sic] what the others do. If you went and did -- as the Media Research Center has done -- clips of what is said on the broadcast networks ... you would find an enormous tilt to the left. So by contrast it looks conservative."

Jane Hall (Who? She's an assistant professor in the School of Communication at American University) complained the film was flawed because it left "out any evidence to the contrary." There were plenty of liberals on Fox she said -- for example, she said, she was a liberal. She also mentioned Jeff Cohen, cofounder of FAIR, was on Fox News Watch "for five years."

Jeff Cohen? Actually, the movie not only doesn't ignore Jeff Cohen. He is one of the most critical interviewees. And again, the film doesn't say there are no liberals on Fox. The show instead reports Clara Frenk reporting that the "quality" of the liberals was far less than the quality of the conservatives -- in the sense that the liberals were either "unknown" or "weak."

Hall also repeated the total non-thought that has been framed around this film -- that somehow the film is weak because it didn't get Roger Ailes to respond. The film in fact has Roger Ailes stating Fox News was to be a fair and balanced news program. It also has Roger Ailes stating Fox News failed its viewers on election night by allowing George Bush's cousin, on the basis of extremely weak data, to call the election for Bush. But even if it didn't twice include Roger Ailes in the film, the idea that before you release a film critical of someone you must include their comment is inane. I've had many critical reviews of my work published, some very intelligent, some others not. Never has anyone asked me for my comment on their review before they publish it. Indeed, to do so would be unethical.

But my favorite part of the whole show is the contrast between segment one and segment two. The review of Outfoxed was in segment two. Segment one was about -- I swear -- "Media bias." For a full segment, Fox News Watch focused on a single statement by Newsweek's Evan Thomas. As Media Research Center quotes him,

The media want Kerry to win. They’re going to portray Kerry and Edwards as being young and dynamic and optimistic, and this glow is going to be worth maybe 15 points."

I guess they would know. They're the trademark holder for the words "Fair and Balanced" (at least until the challenge to that trademark gets resolved).

Monday at Slate.

My wife is a housing attorney at Bay Area Legal Aid. Her work keeps mine in perspective. Yesterday, she sent friends the following appeal. Please excuse the interruption of this "free culture" channel for an issue that will determine whether hundreds of thousands of mostly working families will have a roof over their head next month.

On Jul 18, 2004, at 10:53 PM, Bettina Neuefeind wrote:

Click here to read.

Tuesday at Slate.

Eric Eldred is in more trouble. As this story reports, he's been trying to give away public domain books away. The park service doesn't like it.

Wednesday at Slate.

First Doonesbury, and now AO Scott reviews Outfoxed. Is there anything left?

Thursday at Slate.

Jim Gilliam, one of the producers on Outfoxed, has a great account of O'Reilly's temper tantrum about reaction to the movie.

UPDATE: thanks kd. I don't agree that the points are "reasoned" and I certainly think it is absolutely wrong for him to continue to slander Glick as he has, but I'm happy that the debate avoid side-issues.

Astonishing, and essentially unnoticed, genocide continues. Bipartisan support for us doing something. That could include you. Connect.

Friday at Slate.

Mr. O'Reilly,

You have declared a "war" on the New York Times. That's good for you, good for them, and good for our democracy: Strong opinions deserve strong spokesmen. Your battle will help sharpen a debate about matters important to the Republic.

But in waging this "war," you are continuing to abuse a man whom you have wronged, and to whom you owe an apology.

On February 4, 2003, Jeremy Glick was your guest on THE FACTOR. Glick had lost his father in the attack of 9/11. He had also signed an ad criticizing the war in Iraq. You were "surprised" that one who had lost his father could oppose that war. And so you had him on your show, presumably to ask him why. (Here's a clip from Outfoxed putting this story together.)

You might not remember precisely what you said on that interview, or more importantly, what Jeremy Glick said. So here's a copy that you can watch. Nor may you remember precisely what the ad that Jeremy Glick signed said. Here's a copy that you can read. And when you've watched what was actually said, and read what was actually written, I'm sure you will see that the statements you continue to make about Jeremy Glick are just plain false. Not Bill Clinton "depends upon what is is" false, but false the way most Americans learned growing up: just not true.

For example:

• in the February 4th interview, you said the ad "accused the USA itself of terrorism." Read the ad, Mr. O'Reilly. It says no such thing.
• in the February 4th interview, you said the ad "equates the United States with the terrorists." Read the ad, Mr. O'Reilly. It says no such thing.
• in the February 4th interview, you said the ad "absolutely says" that the United States is to be "equated" with the terrorists. Read the ad, Mr. O'Reilly. It says no such thing.
• on February 5th, you told your viewers that "Glick was out of control." He may have been out of your control. But you and our government have got to learn that just because someone disagrees with you, he doesn't become a security threat. Again, watch the interview, Mr. O'Reilly. He was not "out of control."
• on February 5th, you told your viewers that Glick was "spewing hatred for this program." Watch the interview, Mr. O'Reilly. He criticized you, not the program, for unethically using sympathy for the 9/11 victims for your own political ends. He was calling your behavior improper. You had not earned his hatred.
• on February 5th, you told your viewers that Glick was "spewing hatred for ... his country." Watch the interview, Mr. O'Reilly. He said no such thing. He specifically distinguished the people he was criticizing from "the people of America." He, like the rest of us, loves our country, even if we disagree with its political leaders, or your political views.
• on February 5th, you accused him of using "vile propaganda." What does "propaganda" mean to you, Mr. O'Reilly? He was disagreeing with your views. Why is that "propaganda"?
• six months later, you said that Glick said that the Bushes "were directly responsible for 9/11." Again, watch the interview, Mr. O'Reilly. He said no such thing. Indeed, he twice denied it.
• eleven months later, you said Glick "came on this show and accused President Bush of knowing about 9/11 and murdering his own father." This, Mr. O'Reilly, is a total, if not pathological, fabrication. Glick said nothing about Bush "knowing" about 9/11. He said nothing about Bush "murdering" his own father. Watch the interview, Mr. O'Reilly. Your statements characterizing what Glick said are absolutely false.
• just last week, you again repeated the claim that Glick said that President Bush was "responsible for his father's death." He said nothing of the sort.
• just last week, you repeated the claim that Glick "implied that the United States itself was a terrorist nation." Glick said nothing of the sort.
• just last week, you said Glick said "America itself was responsible for the 9/11 attack." Glick said nothing of the sort.
• And finally, and most extraordinarily, just last week you repeated the claim that "security actually had to take the guy out of the building, he was that out of control." This, Mr. O'Reilly, you know to be absolutely false. Indeed, it was you who threatened physical violence against Mr. Glick after his interview, and your own staff that apologetically begged Mr. Glick to leave as quickly as he could, fearing that if you saw Glick again, as they said, you would "end up in jail."

Mr. Glick is not the New York Times. He will not earn more money from higher ratings because you attack him so viciously. Neither he nor his widowed mother get any benefit at all from seeing Glick slandered by your show on a regular basis.

You are wrong about the facts, Mr. O'Reilly. And you are wrong to continue to do such harm. Have the courage to admit your error. Apologize to Mr. Glick, and let him go back to a life that has been made difficult enough by, as you said, the "barbarians" who killed his father. This family has suffered enough from barbaric behavior.

The end at Slate?

Siva's got a great piece in Salon on the INDUCE Act. Just remember, he was a guest blogger here first.

Roger Ailes on Outfoxed's use of clips (from an interview in Broadcasting & Cable, not available online):

Any news organization that doesn't support our position on copyright is crazy. Next week, we could take a month's worth of video from CNN International and do a documentary "Why does CNN hate America?" You wouldn't even have to do the hatchet job Outfoxed was. You damn well could run it without editing. CNN International, Al-Jazeera and BBC are the same in how they report-mostly that America is wrong and bad. Everybody should stand up and say these people don't have the right to take our product anymore. They don't have a right to take a year's worth of Dan Rather or Ted Koppel and edit it any way they want. It puts journalism at risk.

Notice the strategy: Rally the cartel to protect itself against the critics.

And the New York Post:

It's a dangerous precedent.

Not just because it so badly twists the truth. Or violates copyright laws.

But also because it sets up every news outlet for the same low blow.

If The New York Times or CNN approve of this tack, then just wait until someone lifts an early draft of some Times piece or CNN's out-takes.

No doubt, a double standard will kick in, and they'll be up in arms.

But they'll have been defamed nonetheless.

By now, Americans are used to these tricks of the Left — shady tactics for which the film's sponsors, MoveOn.org and George Soros, are notorious.

But good people — good journalists — must stand up and deplore this trend. They should let Soros & Co. know that deception and outright theft transcend reasonable discourse.