Lessig

A little-known piece of intellectual property, the certification mark, provides a viable mechanism for employers to commit not to discriminate on the basis of sexual orientation. With just a few clicks of the mouse, at www.fairemploymentmark.org any employer in the country can license the "Fair Employment Mark." It is an innocuous symbol, an "FE" inside a circle:
There are lots of parallels to the Creative Commons. Both are reinventions of traditional intellectual property licenses to make the world a better place.

Employers that are committed to the idea of employment equality for gay and lesbian workers don't have to wait for federal or state legislation. They can privately adopt the legislation themselves.

Let me take a stab at mapping out what Ian and I are going to try to accomplish over the next week. As Larry mentioned, we've just published Straightforward - which makes the argument that mobilizing heterosexual support is crucial to making progress on securing equal rights for gay, lesbian, and bisexual citizens. The book is packed with advice about what people can do - on personal and public levels.

But what we really want to stress here over the next week are a series of informational innovations that can promote equality in the military, in the boy scouts (and other discriminatory organizations), in marriage, and in the workplace. The Fair Employment mark fits right in with the theme of informational incrementalism. By certifying one piece of information - that a business does not discriminate - we might be able to induce a substantial number of employers to privately opt into ENDA, a proposed federal statute that Congress has been unwilling to enact.

The Fair Employment licenses and the Creative Comment licenses face similar kinds of resistence. We often hear people say that no employer in its right mind would volunteer for legal liability. But this sounds a lot like people who say that noone in their right mind would ever throw away potential copyright revenues.

But it turns out that there are lots of parallel reasons why adopting these licenses make plenty of sense.

I really enjoyed reading the comments on my post from yesterday, and the many responses those comments engendered. Several people have already said much of what I would say to explain our references to privilege and the role it plays in mobilizing heterosexual allies.
One point I should be up front about: Straightforward is unabashedly written for an audience that is already on board with the idea of equality for gay, lesbian, and bisexual people. The book does not attempt to marshal arguments against discrimination on the basis of sexual orientation. We're assuming that our readers already agree with us about that and now seek ways to put their beliefs into action. Readers who seek reasoned argument on this first point might find the following books of interest: Gaylaw by William Eskridge, The Gay Rights Question in Contemporary American Law by Andrew Koppelman, or Virtually Normal by Andrew Sullivan. But even if you're not a gay rights supporter, our hope is that you'll find some of the ideas we highlight this week in the blog to be thought provoking at the least.
I understand the resistance to a concept like "heterosexual privilege." It can be difficult, even a bit threatening, to face the ways an unequal system gives us advantages that are denied to others. And this is true whether the advantage is based on sex, race, sexual orientation, or where our parents went to college (if they went to college). It just seems to be a fact of life that it's a lot easier to see inequality when you're on the disadvantaged side of the transaction than when you end up on top. So as a white woman, I don't really see the way race affects my life, but I'm quite aware of gender (e.g., taking greater precautions when I walk to my car in a dark parking lot, or making a point at a meeting that goes unacknowledged until a male colleague repeats it). In our discussion of privilege, we're challenging people of good faith to raise their awareness of the rights and abilities they have and take for granted as heterosexuals, and to see how these are sometimes denied to LGBT people. Our hope is that readers will stick with us through that challenging process and read on.
Jennifer Gerarda Brown

Lots of the comments to Jennifer's posts worried that managing information meant (a) lying or (b) burdening individuals' rights of association.

But here's an informational proposal for dealing with the Boy Scouts' discrimination that promotes both honesty and informed association.

Our proposal for a new statute requiring private warnings and acknowledgements can also be applied at the individual level. Instead of just thinking of the duty to warn as a legislative mandate, we might start thinking of discrimination warnings as a personal moral duty of both the discriminatory organizations and their members.

Take for example my church . . .

1. We'll send a free book to the first person who gets a business with at least 10 employees to license the fair employment mark.

2. We'll send a free book to the person who gets the largest number of employees covered by the license in the next month.

3. We'll send a free book to anyone who gets a business with more than 100 employees to license the mark.

In his 1995 Chicago Law Review article, The Regulation of Social Meaning, Larry Lessig discussed some of the rhetorical devices that can change a society's shared understanding of the meaning conveyed by a given word or action. One of these, Lessig explained, was "ambiguation," which gives "a particular act, the meaning of which is to be regulated, a second meaning as well, one that acts to undermine the negative effects of the first." In Straightforward: How to Mobilize Heterosexual Support for Gay Rights, we argue that when heterosexuals tolerate ambiguity about their own sexual orientation, they use ambiguation to promote equality for LGBT people.

Name a type of intellectual property that the owner can't practice?

Here's a proposal for making progress toward equality in the military that is again an example of both ambiguation and informational incrementalism. It comes from Chapter 6 of Straightforward.

Ian and I support the repeal of "Don't Ask, Don't Tell." But is there anything that can be done as a precursor to changing this law?

Imagine that every soldier upon entering the military was asked a simple question.

Would you prefer to serve in a command without any gay personnel?

Soldiers would know that if they answer "No" they would be assigned to an "inclusive" command, and that if they answer "Yes" they would be assigned to an "exclusive" command.

A little over one year ago, the Massachusetts Supreme Judicial court made history with its 2004 decision in Goodridge, generating a new option for gay couples: marriage. We all know the controversy (and state constitutional amendments) these changes have wrought. Much of the focus has been on same-sex couples and their choices: will they travel to marry? Will they seek to transport their marriages across state lines and impose them on unwilling home states?

Less noted has been the new and difficult choice presented to heterosexual couples: Now that it is possible to marry in a jurisdiction that does not discriminate on the basis of sexual orientation, is it moral for heterosexuals to marry in discriminating states?

4 p.m. EST update on June 7, 2005: I'm told the pledge form is working again. My apologies for the inconvenience.

Despite the Goodridge victory in Massachusetts, the battle for same-sex marriage has only begun. Many states have passed constitutional bans on gay marriage. Opponents of equal marriage rights even seek to amend the U.S. Constitution.
The Vacation Pledge for Equal Marriage Rights encourages states to take the landmark step to democratically legalize same-sex marriage.
Why is legislative action so important and how can individuals help to promote it?

Larry Lessig has led the charge in showing that the IP law has gone overboard in extending property rights. In lots of contexts, we would do better with mandated licensing fees that give non-owners the option to use and pay a fee.

I've just published a book called Optional Law: The Structure of Legal Entitlements (University of Chicago Press) that not only formalizes the advantage of optional licenses but also shows there's a dizzying array of optional entitlement structures that can dominate traditional notions of property. The book suggests a variety of new mechanisms for protecting IP and shows how many of them have been used in unnoticed ways in traditional common law decisionmaking.

Imagine that one day you hear your child at play say to another "The way you throw is so gay." It seems "gay" has become a catch-all insult. How do you respond?

You could just let it pass. After all, home and family should provide a refuge from the clamor of the outside world. Gay rights are fine, you might think, but social change is something that happens out there, in society, not within our walls. Then again, maybe social change must begin at home. Many heterosexual people --even those who avoid political activity -- have become allies in the struggle for civil rights simply by the way they talk to their children. Want to join them? If so, read on for ten things you might say if you want to raise a child who can love, accept, and -- as fate might have it --even be a happy person who is gay.

The Lessig blog community is pretty amazing. Self-regulating, constructive, challenging.

Looking back I hope you can see how we paid off on our promise of informational incrementalism

We've suggested that discrimination in the military might be ameliorated by asking a simple question.

We've suggested that discrimination by the boy scouts might be ameliorated by mandating a private conversation.

We've suggested that marriage discrimination might be ameliorated by collecting vacation pledges.

We've suggested that employment discrimination might be ameliorated by certifications of legal promises not to discriminate.

We've suggested that discrimination in a variety of contexts might be ameliorated by leaving your sexual preference ambiguous (and we've provided concrete suggestions when to and when not to ambiguate).

Thanks to Ian and Jennifer for the guest blogging. This was different from the standard Lessig Blog stuff, but I've been a believer in Cass Sunstein's concern about the Daily Me since we spoke about it almost 10 years ago. So I'm happy to mix your reading up a bit. (Don't worry -- just a bit). The issues of this last week are important issues for all of us to talk about. It is the great weakness of liberal politics that too much of the battle is waged in courts. Blogs are to be the space of public discussion of matters important to the democracy (as well as a bunch of other fun things as well). So I am grateful for the conversation (and especially for the break).

Following my whining about a copyright agreement I was asked by Minnesota Law Review to sign (and an update to that complaint: Minnesota was very gracious about changing the contract once I asked them), Dan Hunter of the Wharton School at the University of Pennsylvania, and Michael Carroll of Villanova Law School, and on the Creative Commons board, began pulling together an Open Access Law Project, as part of the Science Commons.

On Monday, the project launched. The project has developed and will maintain three distinct threads.

The first is a statement of Open Access Law (OAL) Journal Principles. Twenty-two journals have signed on so far.

The second is an OAL Author's Pledge, which authors who published in law journals can take to signal their willingness to publish in OAL journals only. I've signed this pledge, and will be working to recruit others as well.

Finally, we have drafted a OAL Model Publishing Agreement that is consistent with the principles of the OAL Project.

We were motivated to launch this project by the recognition that in fact, there is no substantial institutional resistance to open access publishing in law. The major commercial publishers of online journals, Lexis and Westlaw, don't require exclusivity. Any resistance is therefore primarily inertia. Our hope was to coordinate efforts to overcome this inertia, and make access to legal materials cheaper and more universal.

Each part of this project will evolve as we learn more about how best to achieve these goals. We're looking for more feedback, and are opening a discussion list for input.

You can help this project by encouraging other authors and journals to sign on. If you're a law student, then send an email to your professors asking them to join. The same with law journals you might have connections with. We are eager to establish a minimum set of Open Access Law standards quickly, so that others can begin to experiment with better, more ambitious, ideas.

This project is also significant for a more CC-local reason. This is the first project chaired completely outside the organization. I'm grateful to Dan Hunter for his work. His success is a model I hope we can implement elsewhere as well. We've got a million ideas for expanding the commons. But we only have a few overworked souls at Creative and Science Commons to carry them into effect. If we can identify other efficient and hard working souls like Dan to volunteer on a project, we can expand our work more quickly. Ideas welcome.

Princeton Professor Ed Felten has launched a book club review of Code, towards helping along its wiki rewrite.

After notice and a period for comments, Creative Commons has versioned the attribution clause in our licenses. The new clause does something cool I wanted to flag. The essence of the change is to permit the copyright holder to specify what the attribution should be. Thus attribution can be to the author, or to another entity (e.g., the Wiki, or the journal in which the article was first published), or both, as the licensor specifies.

The motivation for this change was both to formalize the CC-Wiki license, which is a rebranded CC Attribution-ShareAlike licenses. With this new attribution clause, a wiki can now specify that attribution is back to the wiki. A second motivation was to help open access publishing: Now the author can require a citation that would include the original journal in which the article appeared — something many journals we eager to have in return for permitting open access publishing.

As of Thursday, the current spread of Creative Commons. The green are countries where the project has launched. The yellow are close. The red is yet to be liberated.

I've been a fan of the OECD's "Working Party on the Information Economy" reports. Though I don't agree with everything they've said, they've been extraordinarily balanced and informative. This is the latest -- a report on "Digital Broadband Content: Music." It promises to be interesting and valuable weekend reading.

We (Creative Commons) just upgraded to Apple's Tiger to get the benefit of some cool new iCal features. I'm regretting the decision already. I had moved to Mail.app a while ago, after being frustrated with Entourage's bloat. And after some tinkering, I had crafted a series of hotkeys to automatically move mail from the inbox to different folders. I have always been astonished that this function wasn't integrated into mail applications -- do you all really drag and drop the hundred of emails you file, or do you just not file email?

Anyway, though Apple proudly lists all the improvements to Mail as an inducement to upgrade, it doesn't list the things it broke -- in particular, scripting. No longer can you script within Mail. And while you can script at the system level, hot-key support for those scripts doesn't work right now.

This is a bug, no doubt. I imagine they'll fix it. But meanwhile, they've also changed the naming convention for such scripts (used to be ctrl, now ctl, etc., or something like that). All of which makes me wonder: who is it that thinks changes like this are improvements? How could you ever imagine that there's more good than harm done by a change like this? Just part of an endless conspiracy to disable the ability to automate life in macland. Why work to automate when some genius will change a convention to force you to recode every time you "up"grade a system?

Update: I thought I had posted this update last week. Sorry for the delay. Just about an hour after I posted this, a modest coder sent along his work which solves the problem. Check out Red-Sweater's Fastscripts. See also this free plug-in.

Michael Geist is a professor at University of Ottowa. He's certainly one the most prolific and effective advocates for all things good. Among the million things he does is write a weekly column for the Toronto Star. That writing, along with his other work, has angered those with whom he disagrees.

Of course, I know well what it's like to be, let's say, not liked. But I've been astonished by the means deployed by our friends in the North for dealing with people they don't like. So too have I been amazed at the rhetoric. Check out Michael's post, Groundhog Day to get a flavor. I guess this is as good a measure as any of effectiveness. Bravo, Michael.

openDemocracy, an independent online magainze for debate about global politics, has adopted CC licensing. From the press release: "Past contributors include Todd Gitlin, Mary Kaldor, Kofi Annan, Anne-Marie Slaughter, John le Carré, Ian McEwan, and Siva Vaidhyanathan."

Boing Boing has a great story about Rush Limbaugh's copyfight.

JD Lasica's fantastic book, Darknet, has now been published. It is a wonderful collection of stories and analysis around new media issues. He says some nice things about me in the book (some at least) so I won't go on about it. But his publisher has allowed him to prime the reading with some mini-chapters.

So we're looking for two fantastic people at Creative Commons -- one to help us with development, and one to replace the irreplaceable Neeru Paharia, who is going to get her PhD at Harvard. The job descriptions are here: Development, ED-CreativeCommons.

The Duke Law School offers an explanation of its leadership in the Open Access Law movement. Of course, that part of the world is responsible for lots of important movements of freedom, and that law school is particularly responsible.

So the world is bursting with extremely cheap, very good high quality digital cameras. No doubt the vast majority of images snapped (is that the verb these days?) with those cameras are by people who have no interest in enforcing a copyright. Yet as Grant pointed out to me, the AP reports, an increasing number of photo labs are refusing to print "high quality" digital images, out of fear that they "might" be professional photographs, and therefore, "printing the pictures might be a copyright violation."

This begins to make plain a point Rusty Russell suggested to me in an email recently: No doubt copyright is a property right. But why isn't anyone out there defending the property rights of digital camera owners? This is a conflict in property rights, produced by an insanely inefficient property system -- copyright. The solution is not, as some seem to believe, to abolish copyright. It is instead to abolish the insanely inefficient part. Yet it is the character of our time: to argue against inefficiency is to mark yourself as a "communist."

So as reported about two months ago, the Free Culture Movement turned one in April. I promised a present. At the time, we were organizing a call in recording of "Happy Birthday," from some of the leaders of the free world. Well, finally, after some struggle clearing rights, and after lots of nitpicking on my part, we've released the song. Check out the page at Creative Commons, donate something in support, and download the song.

Sorry for the delay.

Stay Free! has a fantastically interesting story about the struggles of a film maker with the permission society.

Walter Mossberg has a great column about (as I would translate it) the costs of compromising end-to-end on the cellphone network.

You'll find at the Microsoft IEBlog an announcement that will surprise some. I'm happy it doesn't surprise me.

Following Dave Winer's decision to release his spec for RSS 2.0 under a Creative Commons Attribution-ShareAlike license, Microsoft has now released its spec for "Simple Feed Extensions" under a Creative Commons Attribution-ShareAlike license.

This isn't the first Microsoft site licensed under a Creative Commons license. There's a very cool PatternShare site that builds on Microsoft research licensed under a Creative Commons Attribution license. But this is the first under a ShareAlike license. That's right - the "copyleft" "ShareAlike" license. People are free to modify and redistribute the spec so long as the modifications are licensed under a similar license.

Also notable is Microsoft's representations regarding patent:

As to software implementations, Microsoft is not aware of any patent claims it owns or controls that would be necessarily infringed by a software implementation that conforms to the specification's extensions. If Microsoft later becomes aware of any such necessary patent claims, Microsoft also agrees to offer a royalty-free patent license on reasonable and non-discriminatory terms and conditions to any such patent claims for the purpose of publishing and consuming the extensions set out in the specification.

These steps signal important flexibility and sophistication within Microsoft. For anyone who knows people at that place, this is old news. But even if old news, very very good news.

According to Cathy Kirkman of Wilson, Sonsini, Goodrich and Rosati, the Register of Copyrights has decided to propose abolishing the compulsory right granted by section 115 of the Copyright Act. This is the provision that gives recording artists the right to record "covers," so long as they pay a specified fee.

Remember this 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.

Copyright Law Revision, Committee on the Judiciary, 90th Cong. 1st, Sess., Rep. No. 83 66 (March 8, 1967).

Apparently the Register believes performers no longer "need unhampered access to musical material on nondiscriminatory terms." What progress.

We're moblogging the Creative Commons iCommons-Summit.

So I posted a notice about the Register's testimony about section 115. I'm in the middle of the cc-iCommons-Summit, so I didn't have much time to say anything of substance. My post simply points again to the 1967 testimony about compulsory licenses, and it highlights the point about nondiscrimination.

From this, two highly respected (by me and many) commentators have offered a critique of my comment. Ernie and Joe Gratz both praise aspects of the Register's proposal. They translate that praise into criticism of my comment.

I too would praise much in the Register's proposal. She is right to identify the debilitating effects of the transaction costs in the existing system. And she should be praised for looking for new, creative ways to avoid those costs.

But my criticism was quite local and specific, and not really addressed by either Joe or Ernie. My criticism was about the potential for discrimination. The Register is almost exactly right to say "But in determining public policy and legislative change, it is the author - and not the middlemen - whose interests should be protected." Almost exactly right, because in my view, we should be determining not just "the author" but "the authors" -- the ecology of creativity enabled by copyright's rules. The wonderful and powerful claim in the 1967 testimony is that granting fewer derivative rights to composers than we grant to, say, book authors, produces a wider range of music creativity. I find this argument to be compelling.

So I am concerned with the fact that "[n]othing" in the proposal "obligates a copyright owner to utilize a MRO, but the increased efficiency of that structure provides an incentive for them to do so, just as they have all utilized performing rights organizations." For I'm not convinced that the decision to include rights within a MRO is solely a function of transaction costs.

That will of course invite the question -- "why should composers have fewer rights than authors"? (Joe criticizes the "massive and ongoing wealth transfer from song writers to record companies.") My answer -- which I've blathered on about elsewhere -- is that this has it backwards. The restriction on speech -- which every derivative right is -- should have to justify itself. And that "justification for private rights," as libertarian law professor Richard Epstein puts it, "has to be social." The particular difficult justification presented by this extremely odd "private right" is framed well by Professor Rubenfeld. That work, and of course the work of many others, should lead us to ask again and always: how broadly should the law secure "derivative rights" — remembering again that copyright was born with no derivative rights.

So yes, I too praise Ernie's proposal to eliminate the "copy" right within copyright. I too agree with Ernie and Joe and the Register that we need a more efficient way license online content. But there is an important freedom that neither address that I think copyright needs to address: the right (for free or under fair and nondiscriminatory terms) to build upon culture.

There's a fascinating and important battle going on in Lafayette, LA. Citizens are pushing a referendum to permit the Lafayette Utility System to sell bonds to fund a project to "expand its existing fiber-optic network in Lafayette to everyone in the city." The move is being fought by the telcos -- who would rather bring much more expensive DSL and cable to everyone in the city. John St. Julien and Mike Stagg have been blogging the fight. There's a great website explaining it. And today they've announced the winners in the "Fiber Film Festival," a film contest run to explain the benefits of fiber.

The theorists, of course, who live life in theory-land, object. In theory-land, all this stuff should be provided by the market. In theory-land, the government should stay away. And I'm quite sure, in theory-land, there's lots of cheap, fast broadband available to everyone. Yet most of us don't live in theory-land. And some of those unlucky real world people living in Lafayette have a good shot at getting something that the rest of us real world sorts only dream about -- cheap, fast broadband access.

Good luck with the referendum, Lafayette. Your example might well bring the rest of us down from the clouds of theory-land.