Lessig

Last year it was Microsoft that put us over in our online campaign to raise support for CC. This year, at 5 AM Berlin time (and hence, 8 PM San Francisco time), it was Aaron Swartz who broke the thermometer. Stay tuned for some very cool news about the offline campaign. We should have totals early this week. And thanks to everyone who made this a success.

So after a cool couple years run, my column is leaving Wired. This is the last regular read. (Appropriately enough, given the topic, the title is totally misleading. But I didn't write the titles, and it will be fun to see all those who only read the title responding to this: "I blew it on Microsoft"). More on the general state of my reorganization as soon as this site gets its intended reorganization. That's been in the works for months, with the help of a (plainly overworked) volunteer. But I'm really hopeful to have something to present soon.

But meanwhile, check out Wired Science Wednesday evening. It got a great review on Bloomberg, and the very best at Wired is behind it.

Details to follow later today, but when you add our offline campaign to the online campaign (and assuming we solidify some pledges made in the final week), we will have bested our goal of $300,000 by some $200,000 -- raising over $500,000 in total. Stay tuned for some interesting surprises (and feel free to give some more in the meantime.)

So Congressman-elect Keith Ellison, D-Minn., the African American who is also the first Muslim elected to Congress, has decided to use a Quran owed by Thomas Jefferson for his swearing in -- reminding Virginia, and I hope the nation, of the real American values that stand behind our Constitution. I'm eager to hear Congressman Goode's views of President Jefferson.

So I'm looking for some examples of sites or companies that fit this particular way of carving up the world. This matrix builds upon stuff I've been talking about. But to be clear, let me begin by defining the categories:

RO v. RW environments

This is a distinction between the primary use intended for creative work that the site makes available. It answers the question: "What can you do with the content on this site?"

RO means the primary use intended is "read only" -- the content is offered for the purpose of consumption; there's no invitation to add content back, or to modify the content offered.

RW means the primary use intended is "read/write" -- the content is offered in a way that invites others to add or modify the content that is offered. RW sites can be more or less RW: some invite contributions to the site without permitting modification of content offered.

Commercial v. Sharing environments

This is distinction between the objectives of the site. It is a fuzzy distinction, but the core difference is this:

Commercial sites aim primarily to make money. They are usually run by commercial enterprises, and they measure their success in financial terms.

Sharing sites are not aimed primarily at making money. It's not that creators and users of these sites are communists. It's just that creators and users of these sites do things other than (try to) make money at least part of the day. Think of the Wall Street mogul who teaches Sunday School (and there are these).

Maybe the best way to feel the distinction between a sharing and commercial site is to imagine the role of money in each: There's nothing weird about the owner of a commercial site offering her employees more money in exchange for more work. There would be something very weird in our Wall Street mogul trying to opt out of Sunday School one week by offering each of the kids $50. Money is normal in one context; it is out of place in the other.

It's fairly easy to build a list of examples of each of these four categories. I've done that here.

But what I'm particularly interested in is the combination of these two distinctions -- the matrix above. I'd be grateful for more examples to fit within each of these four boxes. I've built a stub for that list here.

Now obviously, this is social space, not logical space, so the matrix does not describe everything. And indeed, the most interesting category I'm keen to explore are hybrids between commercial and sharing sites -- plainly commercial organizations that try to exploit (in the best sense of that term) a sharing economy. The key to success with the hybrid is to exploit without poisoning the sharing community. Linux is the most familiar example of this: Sharing economy motives push many, perhaps most, to contribute; but plainly commercial entities (RedHat, IBM) are trying to exploit that sharing economy.

I've got a stub to collect examples of hybrids here, with a bit more explanation about what they are.

Importantly: My aim here is descriptive, not normative. It is to see a wide range of examples to begin puzzling through what makes the most successful within each work. For these purposes, the only evil is force or fraud, and none of the four kinds I've mapped need rely upon either. So please direct the flame wars about good and bad elsewhere.

Wow. Post an entry Friday, spend a weekend with your family, and return Monday to a brilliantly populated Wiki -- with a matrix added.

I've followed up on some of the comments in the extended entry below.

One general point: Again, these "distinctions" are not; they describe continua, not categories. Maybe there should be a scale on each access -- from extreme RW to extreme RO, total "commercial" to total "sharing." I'll think about how best to tinker with that as I see more examples.

Thanks again for the examples -- and please feel free to add more.

On 1/11 (or for you EU types, on 11/1) at 111 Minna, San Francisco, the fabulous EFF will celebrate its 16th Birthday. 16 is a weird birthday to celebrate (for either man or legal entity), but celebrating EFF is not in any way weird.

DJ Ripley and Kid Kameleon will be keeping the dancefloor hopping all night long. EFFers will also be on hand to briefly recap the year in digital rights, and we'll be receiving a very generous birthday present from Scott Beale of Laughing Squid.

A $20 donation gets you in the door. No one will be turned away for lack of funds, and all proceeds go toward our work defending your digital freedom.

This fundraiser is open to the general public. 21+ only, cash bar.

Please RSVP to events (at ) eff.org or on Upcoming.org.

I've been a long time supporter of SecondLife. Yesterday, they made me proud. SecondLife announced it will GPL its client software. And it committed itself to freeing the back-end as well.

How significant is SecondLife? Here's a really interesting empirical study by Tristan Louis about SecondLife activity.

How AT&T Chewed up and Spat Out "Net Neutrality"

EFF's Fred von Lohmann (the lawyer who won the Grokster case in the 9th Circuit) will be arguing EFF's first Wiki case on Tuesday in New York. Details:

Tuesday, Jan 16 2007
2pm, federal district court, eastern district of ny (brooklyn)
225 Cadman Plaza East
Brooklyn, NY 11201

Willem got a brother yesterday. Mother is amazing. Father is amazed.

Or so say his parents.
His brother insists his name is "Appletree Alex."

Jim Hightower has opened a site for his colorful, and often compelling, commentary. The flash animations are free for download under a CC BY-ND license. The first is depressingly apt (though the 600,000 figure is not, in my view, correct. But the correct number is still astonishingly high.)

University of Georgia Professor Paul Heald has been working for a long time to understand the right balance in copyright. He's got a fantastic new empirical study posted at SSRN that evaluates the effect on access from work passing into the public domain. Recall one argument for extending a copyright term is that it gives the copyright owner incentives to keep old works alive. Heald tests this hypothesis by looking at the availability of best sellers after the pass into the public domain.

The study is interestingly rich, and the conclusions are interestingly contingent. But the bottom line for books is that a work's passing into the public domain increases access at a lower price. Or put differently: if you want to make sure the classics are preserved, the public domain is a good tool to do just that.

The paper has not been published yet. But consistent with the ideals of science, Heald is making all the data freely available so others can test the hypothesis. The data is being housed at Science Commons just now. So download (paper/data), test, re-test, and see if Heald is right.

One thing's for sure, however: this is the right way to make scientific knowledge available. Bravo, Professor Heald.

Presses Universitaires de Lyon has made my Future of Ideas available online (for free) in French. It is also available in printed form (EU25 less freely).

Two friends of Creative Commons have been nominated for an Oscar: Board member Davis Guggenheim's documentary "An Inconvenient Truth," and Florian Henckel von Donnersmarck (husband of Christiane Henckel von Donnersmarck, original director of Creative Commons International)'s film, The Lives of Others.

(No, we get no tickets.)

As you may recall, the Stanford Center for Internet and Society launched a "Fair Use Project" this year. The focus of this project will be litigation to help mark (and push a bit) the boundaries of fair use. We formed this project because of a large amount of advice we were giving especially in the context of film. But the first case we filed was in defense of a scholar's ability to quote material from Joyce in an academic work. (The story is described in this New Yorker article.)

The Project is led by a former partner from Bingham McCutchen, Anthony Falzone. We're now looking for another attorney to work with him. Information is available at the CIS site.

The Stanford Center for Internet and Society is also looking for a Residential Fellow. Check it out at the CIS site.

So as noted by some, Kahle v. Gonzales was decided Monday. After the oral argument, the result was not a surprise. The reasoning of the opinion, however, is. (I'm going to restrict these comments to part I of the opinion).

A clue that we were in for this sort of surprise was the question asked again and again by Chief Judge Schroeder, how was this case different from Eldred? This was one of those "huh?" moments in the argument. For sure, there was one similarity -- I was arguing this case, and I argued Eldred. But beyond that similarity, the cases were plainly different.

In Eldred, among other requests, we asked the Court to apply First Amendment review to a statute that extended existing copyright terms. In this case, we were challenging the shift from an opt-in system of copyright (where you get a copyright if and only if you take affirmative steps) to an opt-out system (where copyright automatically covers everything). (These two claims are obviously different -- we could just as easily be attacking the opt-in/opt-out distinction prospectively, rather than retrospectively. There's thus no necessary connection between them.)

In Eldred, we were applying ordinary First Amendment law to say that this speech regulation ought to get First Amendment review. In this case, we were applying the rule announced in Eldred, that First Amendment review was limited to changes in the "traditional contours of copyright protection."

So again, the question, how we the cases different?, was puzzling.

That puzzle was not lifted by reading the opinion. Though the Court acknowledged that there had been a change from an opt-in to an opt-out system of copyright, the court held that because Eldred had resolved a "similar" claim, it would not "ignore the clear holding of Eldred" (about, apparently, not the same claim, but a "similar" claim.)

I don't quite get this negative horse-shoe principle of judicial decision making (you're close enough to a losing case to lose). For the claim in Eldred is neither "similar" in form, and is certainly not "similar" in substance.

First form: Again, in Eldred, we asked the Court to test the extensions of existing copyrights under the First Amendment. The Court declined our request -- not because, as the government essentially argued, the only First Amendment question for copyright laws is whether Congress had changed "fair use" or "idea/expression," but because the Court found that Congress had a tradition of extending existing terms whenever it extended terms prospectively, and it was not going to upset that tradition. As the Court thus wrote, so long as Congress doesn't change the "traditional contours of copyright protection" "no further First Amendment review" is required.

This is, as I've written before, a very sensible, Scalia-like test. It essentially says: Where there's 200 years of tradition behind a practice, we're not going to question it now. But when Congress changes that tradition, this new regulation, like any regulation of speech, should be subject to ordinary First Amendment review.

Our claim in Kahle was fundamentally different. We were not arguing that First Amendment review should apply to a 200 year old tradition. We were instead asking that First Amendment review be applied to a radical change in that tradition. Beginning in 1976, Congress had changed perhaps the most significant tradition in American copyright law when it moved from an opt-in to an opt-out system. For 186 years, copyright applied only where the copyright holder took affirmative steps to claim it. That requirement profoundly affected the scope and reach of copyright. Our claim was not that Congress couldn't make such a change. But instead, it was simply that any such change must be tested under the First Amendment.

The "traditional contours of copyright protection" claim was new in Eldred. Ours was the second case to raise it since Eldred. As nothing in Eldred was based upon an argument that Congress had changed a "tradition," Eldred clearly could not have held anything vis-a-vis a claim about a changed tradition. Logically speaking -- or perhaps better, accurately speaking -- there's thus no way that Eldred's "clear holding" could have touched the claim plaintiffs made here.

Substance: But again, the Court was moved by its apparent view of substance, not form. It said our claim was "similar," not the same. And if it isn't similar in form (as I've just argued), the Court must have believed it was similar in substance.

Indeed, that's the plain import of the 5 paragraph section of the opinion addressing the claim. Because the Court in Eldred had said that the CTEA was simply "plac[ing] existing and future copyrights in parity," any statute that did that was essentially the same.

But again, Eldred didn't say the CTEA was exempt from First Amendment review because it put "existing and future copyrights in parity." It said the CTEA was exempt because there was a long tradition of putting "existing and future copyrights in parity." Here, there obviously was no long tradition. Our whole point was that the tradition had changed.

More fundamentally, even if there is a "similarity" in the result (i.e., that terms for existing copyrights and future copyrights are in parity), there is a radical difference in the effect of these two changes. The Court thought in substance, this was the same in Eldred. In substance, however, Eldred is but a jot compared to the massive change effected by the move from an opt-in to an opt-out system of copyright.

I should have thought that difference was intuitive and obvious. It is obvious I was wrong about that. So I've been struggling since Monday to think about a way to show, graphically, the difference between an opt-in and opt-out regime, as compared with the change effected by Eldred. That difference is what the above graphs try to demonstrate. The green in the graph is the simulated stock of works in the public domain from 1791-1978; the red is the simulated stock of works under copyright from 1791 to 1978.

As you can see, there is huge difference in the effect on the public domain in moving from a regime with formalities (e.g., an opt-in system) to a regime without formalities. And there is a tiny difference (not even perceptible) on the long term public domain in moving from a system that permits retrospective extensions (what I call "Eldred Extensions" to one that does not.)

Why does this difference matter? Because if you accept the Supreme Court's view that copyright is to be an "engine of free expression," by creating incentives to create and spread new work, the difference between an opt-in and opt-out regime is that the opt-out regime burdens a vast amount of speech with absolutely no connection to this "engine of free expression." What the "filter" (as the 9th Circuit put it) of formalities did was to remove copyright regulation where presumptively it was doing no further good -- where the work had no continuing commercial value. It thus removed regulation over precisely that speech that could not benefit from copyrights' regulation anymore.

These cases are thus neither "similar" in the formal claims they make, nor in the actual effect on the public domain that each attacks. The only thing similar, again, is that I've been involved with the cases, and that the courts can't yet be bothered to reason seriously about these matters.

These graphs are the product of a model I developed. The model is plainly beta, and I'd be really grateful for any help in verifying it, or in any ideas about how better to describe (graphically) the significance of the difference. If you've got talents in this area, please read the Extended Entry. There you'll find a link to the model and an explanation of how it works. I'm eager to be shown my mistakes here, or a better way to make this obvious point.

You'll remember Roger Ailes' view of Robert Greenwald's film, Outfoxed. As reported in 2004, Ailes said:

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.

Well, it seems Fox has now gotten religion. According to this LA Times report, Sean Hannity will air excerpts that had been removed from ABC's controversial "Path to 9/11." The excerpts "depict then-national security advisor Samuel R. "Sandy" Berger refusing to approve a CIA request to attack Osama bin Laden" - an event Berger said never happened.

I can understand Fox's "fair use" argument — though of course its tougher with work that's not been published. But it's really good to see that Fox now understands the importance of "fair use."