Lessig

And neither did we.

EFF and CIS received news of a huge victory yesterday in the Diebold case. In an opinion released yesterday, the Court held 512(f) of the DMCA could be used affirmatively against the company for its baseless claims of copyright infringement brought against the Swarthmore students who posted memos from Diebold on the net. These are the same amazing students who then launched the Free Culture Movement.

I saw only part of the debate last night, but the part I saw was consistent with this Gallop poll indicating Kerry won the debate, 53% to 37%. Yet according to "US Press": the debate was a tie.

Was it a tie? Or is it just impossible for the press to appear anything but "neutral"?

Update: Here's a report from The Times (UK) with a nice summary of different views, some neutral, others not.

Julian complains that he can't find a copy of the debate on any p2p network he's looked for. Does anyone know of one?

Here's an eDonkey link:2004
Presidential Debate (John Kerry and George Bush).avi

Dave Weinberger has a great story on copyright abuse, this one involving (a) god.

Here's more CC licensed political speech, and though I like the message, it would be great to find some from the other side too. "Unamerican"

STADSchromosomen (City Chromosomes) is a project from Antwerp, in which the people of Antwerp were invited to write a biography of the City. They've published the book under a CC license -- perhaps the first in Belgium.

This is the impression I got from the debate. Click on the video here for a wonderful remix of the debate.

For those lucky enough to see Terry Fisher lecture, this is nothing new. But for everyone else, this is a four slide presentation that tries to identify the potential savings to a record company from internet distribution of CD content.

Just watched this film by Robert Greenwald, who I worked with on Outfoxed. It is a fantastic film, which reminds us of what we know, but have forgotten about the last three years. Get it here.

Check out this Liberty Film Festival. Maybe we can get some cc-d content there?

From the Vice-Presidenial debate last night (transcript):

"VICE PRESIDENT CHENEY: Well, the reason they keep mentioning Halliburton is because they're trying to throw up a smoke screen. They know the charges are false. They know if you go, for example, to factcheck.com, an independent website sponsored by the University of Pennsylvania, you can get the specific details, with respect to Halliburton."

There is a cool site factcheck.org which does have a factcheck about the debate.

My nephew, Tom, has got a blog. If you knew my family, you'd know this is real progress.

I'm here at home talking about Ted Nelson's ideas.

I know everyone (including this one) was so into the .com/.org mistake by the Vice-President. But the statement that is really the most bizarre to me was the following:

(Cheney to Edwards): "The first time I ever met you was when you walked on the stage tonight."

So did Cheney really just misspeak (we used to call that lie), or could it be that this man, one heartbeat from the Presidency, could forget something as simple as this?

So there's great excitement about the effective pause that's been pressed on the INDUCE Act. Hatch has pulled back and is regrouping.

But has anyone been mapping the bigger strategy here? For the last year, Hatch and friends have been passing these single page copyright acts, getting them marked up and put into the hopper through expeditied procedures. All but one was directly awful; the one is indirectly awful. (This is the bill that explicitly authorizes technologies like ClearPlay, but which, indirectly implies, that other related technologies are not "fair use" ("why did you need a statute to permit ClearPlay if you have a 'fair use' right..."))

These thousand tiny cuts have now been united in a single bill, HR 4077, which is racing through Congress -- while all our attention was focused on INDUCE.

Nice play by those lobbyists. I guess that's why they get paid so much.

I missed a bunch of cuts here. Apparently, the true magic of Hatch's strategy will happen today. It will be hard to follow, because it will all happen so quickly. But this is the plan:

The House has passed HR 2391, the CREATE Act, which modifies how collaboration affects patentability.

Apparently, Senator Hatch will substitute that bill today, and plug in:

(1) HR 3632, which regulates the trafficking in fraudulent labels (including watermarks?), as well as a sentencing enhancement for using a falsely registered domain name in the commission of your offense, as well as

(2) HR 4077, which, among other things, includes the following:

(a) the PIRATE Act, which increases copyright enforcement power
(b) the ART Act, which criminalizes camcording in a theater
(c) a sense of Congress that P2P is bad (really)
(d) a reduction of the criminal copyright liability standard, to make it easier to catch file-sharers (the new standard is in the extended entry below)
(e) the Family Movie Act, which codifies ClearPlay-like technology

So what's the politics of all this: By my count, (1) lots for the content industry, (2) one bit for family values (ClearPlay), (3) zero for the pubic domain.

UPDATE: PublicKnowledge has an action center.

So I've been whining for a while about the lack of interesting conservative remixes. I knew this would happen, and have stalled a bit in reporting this (bias confession: the obvious one), BUT:

Here's a clever anti-Kerry remix.

This('n that) is brilliant.

Here's a blog devoted to popculture remix. CC licensed. But needs a RSS/Atom feed.

So I'm a big believer in the value that registration requirements create. Copyright law is the ONLY federal IP regulation that doesn't have mandatory registration. But as EFF's Jason Schultz points out to me in an email, HR 4077 is about to make registration even less useful:

Don't know if you saw this, but the MPAA/RIAA's new copyright bills, HR 4077 (passed by the House, awaiting vote in the Senate) makes two significant changes to what little remains of copyright formalities in the US:

1) Section 602:

"A certificate of registration shall satisfy the requirements of this section and section 412 irrespective of any inaccurate information therein ..."

-- in order words, you don't even have to have an accurate registration anymore in order to sue for infringement. Potentially, you could even make knowing misrepresentations in your form. So much for fair and public notice.

2) Section 603:

"Section 504(c)(1) of title 17, United States Code, is amended in the second sentence by inserting before the period ‘‘, except that the court in its discretion may determine that such parts are separate works if the court concludes that they are distinct works having independent economic value’’.

In other words, you can get statutory damages for separate works within a compilation work, even if you only register the compilation work. The twist is that there is very little requirement that a compilation registration list all distinct and separate works contained therein. Thus, you can now register and sue on works and get statutory damages without any real public notice. The main reason for this is that the RIAA was having problems suing for individual song downloads because they had registered the entire album as a single compilation work. As applied to software, this could allow someone like SCO to sue for the copying of a single file or .dll when the vendor had only registered the entire program or OS. So much for metes and bounds.

This remix of George Bush on "hard work" is wonderful.

(I should have been doing this before, so forgive the unkindness before but: Thanks, John Driscoll!)

Or so he is reported to have said here.

Note to General Ashcroft: We checked. You're right. You don't. Nor do you have a privacy attitude, a rule of law attitude, or a free speech attitiude.

So here's the real question: How can you be Attorney General of the US, if you reject so much of the Constitution's values? (Public Domain, Article I, 8, 8; Privacy, Amendment 4; Rule of Law: the Constitution, as interpreted by the Supreme Court, in, say, Rumsfeld v. Padilla; Free Speech: Amendment 1).

Stay tuned: Oral arguments in Kahle v. Ashcroft on the 29th. (Could there be a better case name?)

So Granny D, the extraordinary 94 year old activist from New Hampshire running for the United States Senate, wants to guest blog @ Lessig Blog.

I'm honored to welcome her here for the next week. I'm scaling back a bit, preparing for the KAHLE argument, while she's pushing ahead, preparing for November 2d.

Her first post will come soon. Please welcome our first candidate for US Senate.

I'm looking for a volunteer web designer, for a quick but short project that needs to be completed by Sunday. The frame is built, but the pretty stuff needs to be added. The project will support a cool nonpartisan presidential election tool. If you're (1) fast, (2) free, and (3) free, email me and I'll give you the details. Thanks

Update: I got a ton of replies within hours, and I think we're set now.

Sorry for the silence re HR 4077, but it took sometime to get this cleared. Anyway, as you may have read, Hatch's plan was stalled by a couple Senators placing a "hold" on his effort to do as I reported before. Here's McCain's statement, and a letter from Consumers Union and Public Knowledge.

Isn't the net great? Bush on Bush.

I want to thank Lawrence for letting me participate here. Yes, I'm running for US Senate (http://GrannyD.com) at the age of 94 against a Bush Yes Man and debate coach, Sen. Judd Gregg. I will debate Gregg next week and am nervous about it, though I certainly have the facts on my side, while his major accomplishments are the Iraq War, the deficit, the fact that the largest employer in New Hampshire was Digital Equipment when he began his term (it is now Wal-Mart), and the fact that you could eat the fish in our streams when he began his term, and they now have enough mercury to tell their own temperature! I'm coming from behind, to put it mildly, but some last-minute TV, a little advice from Joe Trippi, and I think I we can make it interesting.

And good luck in the debate. The key to winning a debate is to keep your own rhythm. After the (literally) thousands of miles you've walked, this should be a natural for you.

As reported in Doonesbury, President Bush's hometown paper has endorsed Kerry. It is the weird thing about this election -- the most pertinent news comes from the comics. (And speaking of which: Have they kidnapped Stewart? How can there be reruns before an election!)

I've been getting lots of emails regarding this potential suit against Disney for its use of the character Peter Pan. But Disney is right -- as we've been litigating in a related case, Somma v. GOSH, for the past year.

That case is about to get interesting. More soon.

We've collected many great stories about the burden of copyright relevant to our case, Kahle v. Ashcroft. You can see them here. Please add more.

I thank the many who have responded to my first blog! This is fun. I was taken to task by one of you for mentioning that Digital Equip. was the largest employer when Judd Gregg was first elected, compared to Wal-Mart, presently.

I agree that Mr. Gregg did not personally upend Digital and invite Wal-Mart in by night. Each company has responsibility for its own success or failure. Yet they operate within an economic environment, and our leadership makes important differences in what kinds of businesses succeed and fail. Right now, there is no leadership to create an environment where companies whith good-paying American jobs are growing, and where they are helping us close in on our trade deficit--quite the opposite is true. There is much that could be done by leaders, if they would show up to do it, and Mr. Gregg is among the missing.

Jon Stewart, attacking the theater that is Crossfire. Crooks and Liars points to a stream here. A bittorrent file is here.

I criticized CBS for its judgment about propriety. From its description, that show seemed to me plainly "appropriate" before an election that would decide, in part, whether the President's decision was one America wanted to ratify. By contrast, I thought its decision to air a show about the President's service in the National Guard was inappropriate -- not relevant to this election.

I've not seen the Sinclair documentary (indeed, there are conflicting reports about whether it is in fact completed). From its description, it seems to me to be closer in content (but not in viewpoint) to the show CBS did show, and further from the show CBS decided was "inappropriate," and so I expect, on the principle I've articulated so far, I would criticize the Sinclair decision. Maybe not, depending upon the content, but probably.

Many have criticized the decision to show the documentary on legal grounds. They have called upon the FCC to stop the broadcast — an extraordinary action for any government actor to take (almost as absurd as stopping a recount from a First Amendment perspective) — and Chairman Powell has indicated, on First Amendment grounds, that he won't stop the broadcast.

No one thinks there's a First Amendment problem when the New York Times endorses Kerry, or the Wall Street Journal endorses Bush. And no doubt, the difference between Sinclair and these newspapers is, one could say, just a difference in degree.

But differences in degree become differences in kind — especially when the power a speaker has is supported by government backed monopolies. Sinclair has the power it has as a broadcaster because the government has given it an exclusive right to something the techno-ignorant call "spectrum." These absurd (and constitutionally unjustified) grants of power to control who gets to speak, of course, continue, as the New Yorker's James Surowiecki brilliantly describes this week. They have always been understood to raise unique questions under the First Amendment.

So I'm sympathetic to those who would qualify the First Amendment analysis that applies to newspapers when applied to broadcasters, though I am less eager than some of my friends to see the FCC decide what speech gets to go on television before a Presidential election.

So much is familiar.

But less familiar is a second sort of "regulation" that Sinclair will not escape. That is the "regulation" of the market, buttressed by the law suits that will certainly be filed by Sinclair shareholders.

In the last week, the stock price of the Sinclair Group has fallen by 10%. The company has lost $60,000,000 in market cap. Josh Marshall has a great clip from a Lehman Brothers research memo attacking the decision from a business perspective.

This drop is no doubt in part a calculation about how Sinclair will fair if the election goes for Kerry. But in part it may also be the product of a large citizen reaction to this corporate partisanship. Among the groups creating pressure on the company are:

Boycottsbg.com
SinclairWatch.org
MediaMatters.org

The First Amendment does not mean people have to like you for what you say. Nor does it protect you if people decide not to buy your product because of what you say, or advertise on your network, because of what you say. All it means is that the government can't punish you for what you say (or at least, that's at least what it should mean, "indecency" notwithstanding).

But "free speech" is more than what the First Amendment says. And I wouldn't be honest if I didn't confess a bit of anxiety at all this "punishing" for what people -- including corporations -- say. The most that can be said in its defense is, I should think, this: In a world where "mainstream" broadcasters such as CBS are too timid to broadcast a plainly relevant story about war "too close" to an election, or where NBC refuses to license clips from "Meet the Press" because it wants to stay "neutral" in a political debate, the action by a concentrated, powerful, rightwing network to use its power to direct the election is bad. If we could break up the government supported monopolies of broadcasters, and change the culture among broadcasters generally, I'd have no problem with it. But now, in this culture, in an election this close, the decision stinks. And I for one won't shed any tears for the "punishment" Sinclair receives from the market, or even the plaintiffs' bar.

I know, why am I worried about protection at my age? I really don't want to be labeled a protectionist, but I think there is a happy medium between raw free marketeering and highwall protectionism. My father worked as a laborer in a furniture warehouse in Laconia, NH. He was able to own a house and raise five kids pretty decently. You can't do that anymore, and the reason is that the economy is no longer self-contained in the way that a good system or a good machine can be. Without some containment, it's rather like trying to farm without scarecrows, on the theory that the hungry birds are part of the free market of the farm, or letting the irrigation go wherever it likes, without channels to keep it from seeking the lowest point of the field. Healthy systems have their boundaries.

p2p-politics.org went live this morning. This was an idea a couple of us had last week. I blogged for a web designer on Thursday. J Christopher Garcia was among the first. Aaron did the backend design.

The idea is simple: Send a message. There is a pile of clips to select among. Select some that best express a point you think a friend should hear. Put the friends address into the email box. Add some text yourself. Click send. Your friend will receive an email, with links back to the clips, and also an invitation to do the same to someone else. Anyone can upload relevant content to the site, though for obvious copyright and other reasons, all entries must be reviewed before going live.

MoveOn was able to give us the initial content -- 150 ads from the BushIn30Seconds contest. The Kerry campaign has added some of its own. I've invited, through a number of channels, the Bush campaign to add something. No reply yet.

The Internet Archive is hosting the content under a Creative Commons license. Thanks to Brewster, J Christopher, and Aaron for pulling this together so amazingly quickly.

So lots of great reaction to p2p-politics.org today, and we've modified in response. In particular:

(1) We've changed "Nader" to "Other" so as to encourage other (actually more prominent) candidates to be included without adding too many tabs;

(2) Adding a comment link to each ad, so if you have a view about an ad you'd like to express, there's a wiki page to do it;

(3) Adding the option to upload audio as well as video;

(4) Adding RSS/Atom feeds, so you can subscribe to new content.

Still no response from the Bush campaign. And of course, throughout, "we" here means the tech sorts, and today, that meant Aaron.

Granny D here. I love this blog world--you make a general statement and then some people write a book for you about it. Thank you all for your comments on protectionism. I am totally persuaded and will now stop pruning my garden, leaving behind my old fashioned notion that editing and flowering are necessary partners.

What does continue to bother me, however, is the unsaid notion that labor is one of the several components of manufacturing, when, in fact, it is us. Economists (and their hunchbacked evil blogger assistants) tend to make such deadly abstractions that they lose sight of this, as if the Economy were a demigod or at least a being unto itself, whose health we must serve by sacrificing our own.

Granny D again. I'm just two nights away from my CSPAN debate with Senator Judd Gregg, who seems to want to keep his Senate seat, and I'm very nervous. It is hard for a 94 year-old woman from the woods to think about going against a career politician lawyer, but I got myself into this mess.

We get to ask each other four questions. I think I know what I will ask him (see http://GrannyD.org), but I can't imagine what he will ask me. If he hired you to come up with a question or two, what would you come up with? I'm sure he wants to put me on the spot without looking mean or disrespectful of my age. Any ideas?

Oh, and I VERY much appreciate all the posts in reply to my messages. I am learning a great deal.

Yours, Doris "Granny D" Haddock

In a couple hours, Granny D debates her opponent in the New Hampshire Senate Race, Judd Gregg. Here is a great site that summarizes his views on the issues. From the Lessig Blog (and Lessig!), good luck, Granny D. Just show who you are, and the rest will take care of itself. Speak real -- not, e.g., "New Hampshire is a special place, home to many wonderful people." (from the Judd site), but the way you've spoken here.

Laura Bush: "No need to apologize."

I sincerely want to thank the many of you who gave me so much information and so many valuable perspectives on the issues I've raised here. In less than an hour I will go into the lion's den to debate Judd Gregg. He, as you may know, is the fellow who prepped Geo. Bush for his debates. My only hope is that George returns the favor!

Otherwise, we are doing what campaigns are supposed to do before a debate: lowering expectations. That is difficult in my case, as we are already just where a campaign would want to be. Going for me are, let's see, age 94, emphysema, arthritis, nearly deaf, no experience debating, didn't read the newspapers this morning. All that is finally an asset!

Love to you all!

Doris (http://GrannyD.com)

Well, the debate was fun, but frightening, of course. There were so many times when I felt like a fool--not finding my words or letting some golden opportunities just slide by. But it was wonderful to be finally looking him in the eye and speaking the truth right at him. WMUR has an online poll of viewers. Those who though I won: 79%. Those who though Judd Gregg won: 20%. So I thank my many coaches on this site, and for all your encouragement, which was very real and very strengthening to me.

And to Professor Lessig, I do so thank you for your generous hospitality here. I shall look into getting one of these blogs for myself one day soon, and I will always thank you for teaching me how to do it.

A big walk and three speeches tomorrow, so I'm to bed!

Love again to all,

Doris

A campaign to oppose the draft.

For any KALW (91.7), listeners, tune in Sunday at 2pm for The Creative Remix. More about it here.

Next week, guest on this channel: Professor William Fisher of Harvard, to discuss his new, and IMHO, extremely important book. Be prepared. Those Harvard profs like to cold-call on people.

To balance the silence from the Bush administration, p2p-politics.org now enables you to ad links, without uploading content. Add a link here.

How many mistakes can be made in 800 words? Read and count.

Larry has kindly offered me the opportunity to host his blog for a week. My plan is to use the opportunity primarily to catalyze a discussion of the current crisis in the entertainment industry and what potential solutions to it are both attractive and practicable. I recently published a book on the subject: Promises to Keep – Technology, Law, and the Future of Entertainment. The Introduction, which lays out the argument of the book as a whole, and Chapter 6, which has proven to be its most controversial piece, are available online. The book itself can be purchased through any online bookstore.

I thought I’d begin by briefly summarizing the argument of the first chapter, and then ask whether, particularly in light of some recent articles and developments, the argument holds up.

Congressman Tim Ryan (D-OH) on trust. Recently added to p2p-politics.

Several of the interesting and challenging responses to my original post focused on the merits and demerits of my contention that an alternative compensation system (ACS) would be superior to the copyright system as a way of compensating the creators of recorded entertainment that is distributed online. I had originally intended to save discussion of that topic for later in the week. But it’s understandable that people want to take it up now, so here goes…. I’ll begin with a very brief summary (taken from the Introduction to the book) of my variant of this idea, then address a few of the more serious objections to such a system.

A sufficient number of interesting responses have been made to my original post on Alternative Compensation Systems that I thought I’d start a new thread. I can’t hope to address all of the themes that have been raised, but here are a few:

From the last set of interesting reactions to my proposal for an Alternative Compensation System, I’ve culled a few especially sharp-edged objections. After trying to address them, I turn to the difficult question of what sort of regime is likely to emerge in the entertainment industry if we don’t move toward an ACS.

Declan's got a nice piece about a crack in the IP extremism that seems to define both candidates in this campaign. As he explains, Kerry has signaled a willingness to rethink the extremism in the DMCA. This, combined with the great news from the Sixth Circuit in the Lexmark case must make the IP extremists very sad. Poor IP extremists -- at least if Kerry pulls this off.

George Bush has apparently endorsed John Kerry for President, advising America that we don't want as commander in chief "a political candidate who jumps to conclusions without knowing the facts." True enough, Mr. President. How much better off we would have been had you not jumped to conclusions (re WMD) without knowing the facts.

Much better, no doubt, is a commander in chief who bases conclusions upon the facts, or, even better, acts when he learns of the facts (as this Administration did not do when it learned, in January, of the mistreatment of prisoners in Iraq and Cuba).

The WiredCD is here, bundled in the November issue of Wired. Amazing, beautiful, so amazingly cool. Here's a great interview on Talk of the Nation with Chris Anderson and Kathleen Hannah of Le Tigre.

from a description in a financial emal:

For those outside New England who can't understand the emotional significance, please indulge me the following tale: Earlier this morning, I went to grab a bagel and coffee at my regular haunt in Framingham, Mass. (western suburb of Boston). As I waited in line, an older man walked up to a woman who was reading The Boston Globe. He asked her if he could see the front page, because all of the newsstands in the area were already sold out. She offered him the entire paper, but he gently said that he just needed to see the cover. She showed it to him and he started to cry. Grown man in the middle of a coffee shop on an October morning. Cynicism has finally taken a holiday.

In a huge signal of conservative scepticism, the Economist, after endorsing Bush in 2000, and Dole in 1996, has endorsed Kerry.

And the videos are getting quite mean. Just saw this on p2p-politics. (Warning, if you're from Bush's base, you will be offended by this).