Lessig

Thanks to Congressman Boucher, Judge Posner and Professor Wu for keeping the blog alive in August. We're putting together a page to make it easy to link to guest blogger threads. I was not surprised to see how great all three as bloggers are -- perhaps this will inspire them into blogspace. I'll follow up in the next weeks with some comments on each.

Philadelphia is considering adding WiFi boxes to all street lights, making the whole city WiFi alive. What I like best about this idea is how the link to street lights suggests how we should think about this resource:

(1) Is it free? No, just as street lighting costs money, it will cost money to put Wifi boxes on street lighting.

(2) Is it free. Yes, like lighted streets, and air conditioned city hall, you won't have to pay to enjoy the resource.

(3) So it is free and not free: yes, as all great public resources are.

And as with all great public resources, this will benefit Philadelphia in ways we cannot begin to imagine. Let the city provide a platform, and watch the entrepreneurs find a million ways to make it valuable. Did anyone have any clue about all the ways the GPS would be used once Ronald Reagan set it free?

Finally, the Kerry campaign gets some passion in response to the attacks.

The UK Parliamentary Office on Science and Technology is preparing a POST note on 'Open Source'. (No, I didn't know what a POST note is exactly either, but check it out here.) The author is looking for helpful comments. I've created a temporary email address for David Berry. You can send him comments at that address for a week.

I've never really bought the conspiracy story surrounding the Diebold voting machine stuff. I've been happy that the issue has been raised (and even happier that the battle about copyright that Diebold's effort at censoring criticism created also created the Free Culture movement at Swarthmore, and now spreading).

But if this story is true, I will have to rethink my view. As reported at Blackboxvoting:

By entering a 2-digit code in a hidden location, a second set of votes is created. This set of votes can be changed, so that it no longer matches the correct votes. The voting system will then read the totals from the bogus vote set. It takes only seconds to change the votes, and to date not a single location in the U.S. has implemented security measures to fully mitigate the risks.

Is this really true?

Here's a demo of San Francisco's implementation of Ranked Choice Voting -- permitting people to vote for their first choice in an election, but then allowing their preferences to count if the first choice loses. As many have observed, this would make it easier for people to vote for their first choice (e.g., a 3d party candidate certain to lose), without having that vote increase the likelihood that their third (or 100th) choice wins.

It is the nature of the net that just about the time you think, "there ought to be ...," there is. Here's a site with a collection of films relevant to the election. It would be better were there more that were clearly from the other side. Ideas?

That's certainly how the GOP convention seemed to me, though maybe I'm just too "sensitive." But this certainly was a different convention from the GOP convention at which I was a member of the Pennsylvania delegation (indeed, the youngest member of any delegation) in 1980. That the was the Party of Jack Kemp. This is the Party of Zel Miller (!).

Christian Ahlert and Thomas Hoeren have translated a Munich Court decision about the enforceability of the GPL in Germany. Ahlert also has an introduction, to the case and to Creative Commons, and Professor Hoeren has written a commentary.

Tickets going fast.

So ordered the 6th Circuit Court of Appeals. Sampling, we're told, is piracy. But be certain to see the 19 footnotes in this relatively brief opinion, or the 28 separate quotes the opinion includes from other peoples work. I assume the court got a license for those.

Now that's not quite fair. The court's decision turns upon its "literal" reading of the sound recording statute. The sound recording statute has no de minimis exceptions, the court held. So while you are free to copy three notes from a musical composition, you can't copy the same three notes from a recording. So copying (so long as de minimis) is fine; cut & paste is not. It is a "bright-line" rule the Court has crafted: Ask permission first. (And don't worry, they might have added. It's simple.)

So once again: life in the analog world is freer than life in the digital world. You can do it, just don't use technology to do it -- unless, of course, your lawyer has spoken to their lawyer.

I continue to be astonished at how far PFF has moved from its roots. The group has issued a press release demanding Supreme Court review of Grokster, buttressed with supporting blog entries by Bill Adkinson and a "grid" by Solveig Singleton with a six (yes, count them, six, with some including italics) factor test that courts are to apply to decide whether a technology is legal or not.

I can well understand New Dealers racing to craft multifactored tests to regulate innovation. But I thought the whole point of the conservative (economic) movement was to teach us how harmful such regulation was to innovation and growth. Any test that cannot be applied on summary judgment guarantees that federal judges will be forced into a complex balancing to decide which innovation should be allowed. And thus, any industry threatened with competition can then use the courts to extort from these new competitors payment before they are permitted to compete. That is precisely what Valenti says the VCR case was about. He didn't want to stop the VCR, he tell us. He wanted only to force VCR manufacturers to pay for the right to sell consumers VCRs.

Courts, and lawyers, have ruled Silicon Valley long enough. The great hope of the Grokster opinion was that it would return us to the time when entrepreneurs could invent without seeking a permission slip from a federal court (to borrow from the President) . It is simply bizarre to see PFF now call for a return to the days of industrial policy regulated by federal judges. Especially bizarre when you consider how taxing this policy will be to many of the "supporters" of PFF. Many (e.g., Apple, Microsoft, Intel), but alas not all (EMI, Vivendi, BMG). Thus the danger of putting principle up for bid.

So, shamefully, I've contributed to this irrelevant question blog ("Mr. President, how many times have you been arrested?"), but I can't begin to describe fully how depressing this presidential campaign has been.

Why do we waste attention on these ridiculous questions?

I'm sure Mr. Bush's record was nothing to be proud of -- his drinking problem is well documented, and these things go together. But I'm also sure he is no longer that man -- and for anyone who has seen someone overcome that demon, you know the courage this requires. So I really don't care how many times he was arrested, I don't care if he used power to escape his obligations in the Reserve -- whether he should be our President depends only upon whether the policies he will pursue are good for this nation.

Likewise, re Mr. Kerry: I am sure he demonstrated unimaginable courage in volunteering to serve his country in an unpopular war, and then mustering the courage to articulate brilliantly the reasons why that war was wrong. But we're not electing a captain for a military unit -- if shots are fired, he will follow orders, not give them -- and while it would be great if he could find a way to articulate why this war was wrong, the presidency is not a reward for great Senate testimony. Whether he should be our President depends upon whether the policies he will pursue are good for the nation.

So why can't we actually talk about the conflict in these policies? I'm confident about that choice, but I would love my view to be challenged by real arguments, and a focus on real issues. CBS almost seems proud of their idiotic story. Shame on CBS. Shame on us.

So I'm at the Tech Nation Summit, watching Dan Gillmor talk about real-time blogging.

One of the exciting thing about the early days of the Democratic primary was that there was at least some debate about whether the Democratic Party would continue to be led by IP extremists. Some of the worst in IP came, after all, from the Clinton administration. Reflecting on that, many were hopeful we'd see some new thinking. Many of the most passionate Deaniacs were eager to see new thinking on this issue. Senator Edwards addressed some of this on this blog.

Word now is that Bruce Lehman, former Assistant Secretary of Commerce, and Commissioner of Patents, is spreading the word that he is running IP policy on the Kerry campaign. In the scheme of extremists, few are more extreme. Of all the government "Czars" in our form of government, he proved himself to be most to be feared.

Yet another bit of depressing news, if true, from this extraordinarily important campaign.

That'll teach us for teaching the Chinese about the importance of copyright law. Google has been threatened for using news summaries in its Hong Kong Google News service.

Making Torture Legal, a story by Anthony Lewis about an issue that ought to be an issue in this issueless campaign, is the best of its kind that I've seen. I was referred to it by an Israeli friend. As he said to me, "of course there is torture in Israeli prisons, but there is nothing remotely as bad as this."

Truth, and justice. May it again be the American way.

There's a great article in the New Scientist about the dangers in IP extremism. As it rightly notes,

THERE are some things in life we take for granted. Among them are the ability to lend each other books, record TV programmes, back up expensive computer programs, and sell on our old CDs when we've got tired of them. ... That could change. New technologies are giving copyright owners the power to control the time and place we can view or play digital versions of music, films and text so tightly that we run the risk of losing these rights altogether.

John Gilmore's battle to force the government to explain the basis upon which it demands that airlines verify an ID before permitting someone on a plane got a small victory last week. The government had asked to file its brief, defending a rule that is itself secret, in secret. The 9th Circuit said no.

The good folks at Downhill Battle have organized a call-in campaign re the Induce Act. Check it out here.

In the Wall Street Journal. On a plane to New York in the morning. I'll report back after the concert.

So as I reported earlier, two people whose integrity I would not question told me that Bruce Lehman had told them that he, Lehman, was now advising the Kerry Campaign on IP policy. Now two people, whose integrity I would not question and who have direct connections to the campaign, tell me that is not correct. Let's hope.

According to an article in the National Journal Tech Daily (9/23), Bruce Lehman claims he is on the Kerry Technology Committee, but is "playing a relatively minor role." The article quotes an unnamed source that he "is not part of Kerry's core group of tech advisers."

But whether core or fringe, why is he part of "tech" advisers at all? Lehman's policies did more to encourage the war on technology that these past 8 years have seen than anyone else in DC. Let him serve on the "last century protectionists" committee. Indeed, make him the chair.

Lehman says he finds it "really sad -- pretty sad" that I had criticized him on this blog. (No confirmation which.) And just to show how effective I've been in getting my point across, Lehman is quoted as saying: "[Lessig] seems to believe you can have a post-industrial economy without any copyrights." Oh yes. That's exactly what I believe. I'm also a Marxist, and commune regularly with Chairman Mao. With insight such as this, I can see why he'd be such a valuable member of the Kerry team.

A district court in the Southern District of New York has struck down the anti-bootlegging provision of the copyright act. There is a new report here. I should have the opinion up soon. (Disclosure: I did pro bono work on this case.)

UPDATE: I have a scanned pdf of the opinion. (Warning: It is huge (64mg)). (Thanks to Joe Gratz, here's a very readable compressed version at about 500k).

The opinion is fantastic. The Court concludes (1) that antibootlegging regulations are "copyright-like" regulations, and thus are within the scope of the Copyright Clause, (2) that this regulation violates the Copyright Clause because it doesn't have a limited term (citing Eldred (sweet justice)) (And remember, the 11th Circuit's case expressly did not consider the limited times argument), and (3) that Congress can't use the Commerce Clause to do what it can't do under the Copyright Clause, so long as the subject matter is "copyright-like."

I have always been a fan of Judge Baer, but never more than today.

There will be few nights in this boy's life as cool as the Wired/CC Concert. Here are some pictures.

Sorry about the slow posting this week. But just so you don't think I'm lazy: I spent the week debating William Tucker in the Legal Affairs debate club.

So though I have spent over $60 for wireless service this month, I've had no wireless phone. And indeed, if this is Audiovox's policy, it is a really good reason not to rely upon that company. Unless of course, your cell phone is just a toy which you don't really need, and you don't mind spending scores of dollars for service that you cannot use.

So CBS thought it was appropriate to run a stupidly irrelevant story about what the President did 30 years ago. It got busted by the bloggers when it turned out that its sources were bad.

Now CBS has decided that it is inappropriate to run a story about the Iraq War so close to the election.

So let's see what CBS believes the word "appropriate" means:

It is appropriate to run a story that has nothing to do with the President's current ability to run the nation, and that offers nothing at all helpful or informative about policy decisions we Americans are supposed to make.

But it is inappropriate to run a story about perhaps the most important policy decision the President made, which, if people understood more, would directly affect their judgment about the President's ability to run the nation.

Why CBS thought the guard story appropriate, I have no idea. But they could only think it inappropriate to run a real and relevant news story if it is as false and ridiculous as the guard story.

If it is a false story, then they should never run it. But if the story is true, then the failure to run it is the purest act of cowardice. Just the sort of "news" we get when the media is controlled by a few suck-up giants.

Professor Terry Fisher's new book is the most serious, comprehensive treatment of the alternatives we face for protecting copyright in a digital age. While it's famous for his particular solution, it is most effective when you see his solution against the background of the complete set of alternatives that he surveys.

I think this book deserves extremely serious consideration by all who think seriously about this issue. I've asked Terry to guest blog during the week of October 24, but I'd encourage people to look at the book before then. His publisher has permitted him to make only two chapters available freely. You can find them on his website. You can also get the book at Amazon.

Adam has a great piece about freedom of the press.

EFF is hosting an event about e-voting. As they post:

BayFF Event - "E-voting and the Upcoming Election" on Tuesday, October 12 at 7pm: Come join EFF at the 111 Minna Gallery in downtown San Francisco to talk about e-voting and the upcoming election, as well as share food and drink and listen to live music by talented local artist Samantha. This event is free and open to the public, so be sure to invite your friends and colleagues!

More information here.

A group of good sorts have put together a PAC to frame and push IP-related policies. Here's the site with the list of candidates they're supporting. Cool if they could find some marginal sorts who have been totally obtuse about these issues to target as well.

Bruce Ackerman has an interesting piece in the American Prospect about the oath Rumsfeld asked the civilians sworn to review the judgments reaching by the Guantanamo Bay commission: "Does each one of you swear that you will faithfully and impartially perform according to your conscience and the rules applicable to the review filed by a military commission all the duties incumbent upon you as a member of the review panel, so help you God?" "God" is central; the Constitution is forgotten. A metaphor for too much these past few years.

The band "The Politnix" has remixed Bill O'Reilly to produce this (mp3) song. The song is written by John Amato and the vocals are by Donny Daley. More at Crooks and Liars.