Lessig

Over the next couple months, I'm going to try to put together short presentations outlining arguments for six Internet-related proposals that I believe Congress should enact over the next year. The trailer-description for each follows:

Copyright: Orphan Works: Orphan Works legislation is critical. Nonetheless, I strongly oppose the Copyright Office's "Orphan Works Proposal." I think it is extraordinarily unfair to current copyright owners, and insanely inefficient. My proposal applies an "Orphan Works Maintenance Requirement" to older works only; the requirement is a form of registration.

Copyright: Remix Culture: Congress should carve a robust exemption to the law for non-commercial remix. Commercial use of such remixes should be regulated by a baseline statutory license.

Network Neutrality: No surprise: I support Network Neutrality legislation. Unfortunately, too many of the reigning proposals are, imho, radically too difficult to enforce. I'll propose a much simpler rule to enforce that would achieve the legitimate objectives of NN.

Spam: The email system is broken. A bazaar of private remedies to deal with spam now clog the system to defeat many of its original objectives. I'll propose a modified version of an earlier idea to deal with this problem -- a problem that costs the American public many times the total profits of the recording industry, but has gotten but a fraction of Congress's attention.

Harmful to Minors Material: There's a simple and minimally burdensome way Congress could protect kids online from material deemed "harmful to minors." Not perfectly, but certainly better than the current regime. And without constitutional risk.

Deregulating Spectrum: Crude radio technology used to make regulating spectrum necessary. Smart radio technology makes it -- in many cases at least -- unnecessary. We should be pushing to deregulate where technology makes that possible.

I hope these presentations will be no more than 15 minutes long. The first presentation will be posted later today. Unfortunately, it is about 35 minutes long.

For almost a decade now, many of us have been pushing for copyright reform that would address the problems of orphan works. That was a key motivation behind the attack on the Sonny Bono Copyright Term Extension Act. It was the focus of my op-ed in the NY Times after we lost in that attack. That op-ed proposed one system for dealing with orphan works -- register your copyright after 50 years and pay $1; if you don't the work passes into the public domain. That proposal was the basis of Congresswoman Lofgren's "Public Domain Enhancement Act," which was partly responsible for Senators Hatch and Leahy asking the Copyright Office to study the problem of "orphan works."

The Copyright Office's report is brilliant. Its proposal is less brilliant. Its essence is that a work is deemed an "orphan" if you can't discover the copyright owner after a "reasonably diligent search." If the work is deemed an orphan, then the copyright owner's rights are curtailed.

I think this both goes too far, and not far enough.

Too far: By applying the remedy to all works immediately, the work imposes an unfair burden on many existing copyright holders -- who have followed a rule which since 1978 has said, don't worry about such details; it puts an especially unfair burden on foreign and unpublished copyright holders. In my view, photographers and other existing copyright holders are right to be outraged at the proposal. Hiding under the cover of "reasonably diligent search," much of their work will be -- unfairly -- threatened.

Not far enough: The trigger to the Copyright Office's Orphan Works Remedy is whether a copyright owner can be found with a "reasonably diligent search." That standard is just mush. The report outlines six factors to be considered in determining whether a search is "reasonably diligent." The effect of this complexity is simply make-work for lawyers. Libraries and archives will be unfairly burdened. Users won't be able to achieve any real security.

The alternative I propose is a kind of copyright maintenance procedure (like patent maintenance). It differs from the Copyright Office's proposal in three critical ways:

First: It applies just to old works, not to new works. For works after enactment, copyright owners get a 14 year grace period where they need not worry at all about any orphan work requirement. For work published between 1978 and today, there's no orphan work requirement until 2021. And for work published before 1978 (in a time when formalities were the norm), there is no requirement until 2012.

Second: It applies to published "United States works" only -- not to foreign works or unpublished work.

Third: The requirement it imposes after the 14/5 year delay is registration. But not registration with the copyright office; instead, registration with a private registrar approved by the copyright office. No government run registries here. Instead, something more like a DNS for copyright.

This chart at the top summarizes the differences.

You can download a one-page description of the proposal here.

You can download or stream the (35 minute) presentation here, or watch it on Google Video below.

The Net's ablaze with talk about Steve Job's call for the end of DRM for music. That is really fantastic news and contrary to what many of us had believed he believed. For one feature (from Apple's perspective) of DRM is that it ties iTunes to Apple devices. No DRM would end that tie as well.

So bravo to Apple and Steve Jobs. About this I am happy to be proven wrong. But then here's a simple next step: There are artists on iTunes whose creative work is Creative Commons licensed. Colin Mutchler is one. When his stuff first went into iTunes, he requested the DRM be turned off. The request was refused. But if no-DRM is Apple's preferred policy, then let them begin here.

As reported on BoingBoing: This is extraordinary. Watch it. Share it.

(Thanks, Neil!)

You'll recall Shloss v. Sweeney, the fair use challenge brought by the Stanford Center for Internet and Society's "Fair Use Project" last June, on behalf of Carol Shloss, a Joyce scholar at Stanford. The case challenges the abuse of copyright by the Joyce Estate, interfering with the academic work of Joycean scholars. (The story of that abuse is recounted in this fantastic piece in the New Yorker.)

On Friday, we passed an important hurdle. The district court has denied the defendant's motion to dismiss. The decision was quick, and is very well and completely reasoned. Judge Ware did permit the estate to strike a paragraph from the complaint (we were probably getting wordy in any case). But every element of our complaint remains -- including, importantly, the copyright misuse claim.

Most of the work in the case has been handled by Stanford CIS Fellow David Olson. Since joining CIS to head the "Fair Use Project," Tony Falzone has also become a key player in the case. Tony argued the case before Judge Ware. We've also had great support from a Joyce scholar, and lawyer with Howard Rice, Robert Spoo, as well as the firm of Keker & Van Nest. These attorneys, and the others at CIS (including many extraordinary students) deserve a great deal of thanks.

It is rare for the press to talk about issues in the copyright beyond "piracy." The New Yorker piece is a nice exception. My hope is more cases like this will lead people to recognize the many more issues here beyond whether people "take" music for free.

"Using detailed records of transfers of digital music files, we find that file sharing has had no statistically significant effect on purchases of the average album in our sample," the study reports. "Even our most negative point estimate implies that a one-standard-deviation increase in file sharing reduces an album's weekly sales by a mere 368 copies, an effect that is too small to be statistically distinguishable from zero."

Study here.

(Thanks, M.David!)

It is with sadness that I post that we're looking for a new General Counsel at Creative Commons. After two fantastic years at the legal helm, our current GC, Mia Garlick, like the GC before her, Glenn Brown, has been snatched up by the Google Monster. (It's a nice monster, but very lawyer-hungry).

This is a insanely cool job, though of course, for only non-profit pay. But for anyone eager to move into a more interesting, remake-the-world kind of practice, check out the description on the CC site.

So these are taking longer than expected, and now I've added a topic I didn't originally flag (though in 1984-fashion, I've hidden this fact by simply changing the original blog entry).

The subject here is spectrum policy. The argument is that we deregulate spectrum. "Deregulate" not in the sense that we auction spectrum. Auctions require a gov't created property right; that's a form of spectrum regulation. "Deregulate" in the sense that we set off large swaths of spectrum for unlicensed use. Congress has made this impossible in the short term for any significant chunk of spectrum. But we do have an important opportunity to set free "white space."

The argument might be best introduced with the following hypothetical:

Imagine the government nationalized the hotdog market, and then sold to the highest bidder the "right to sell hotdogs" at in a particular place for a particular period of time. These rights -- the right to sell hotdogs -- could be structured to be a kind of property. The market would thus allocate them to the highest valued use. And the initial sale would raise lots of money for the federal treasury.

Are you in favor of that? And if not, then why are you in favor of spectrum auctions? "Because certain uses require regulation," you say. But then why not push towards uses that don't require regulation?

Download or stream the video here (27 minutes).

Watch it on Google video below:

My argument builds upon a point I made in a piece published in Cato's Regulation. You can download that piece here.

I couldn't resist a second round on Orphans. This one's very short (about 8 minutes). It was inspired by the comments/debate about the first Orphans post.

You can download/stream it here.

Or watch it at Google Video below.

Version 2 of the "freedoms license generator" is now up. Play, and let us know what you think. The aim of the tool is to help develop an intuitive sense of the relationship between the freedoms/constraints of the Creative Commons licenses. It's got a fancy new interface, and is now really fast.

Yesterday, in LA, in partnership with the insurance company, Media/Professional, and LA lawyer Michael Donaldson, we (the Stanford CIS Fair Use Project) made a major announcement. In my just about 10 years working on these issues, this is the most important announcement yet.

As reported just over a year ago, American University's Center for Social Media released the Documentary Filmmakers' Statement of Best Practices in Fair Use. This fantastic report outlines principles to guide filmmakers in the fair use of copyrighted material in their films. It was an important step towards helping to clarify this unruly area of the law.

Working with Media/Professional, and Michael Donaldson, the Fair Use Project has now found a way to insure films that follow the Best Practices guidelines. For films that are certified to have followed the Best Practices guidelines, Media/Professional will provide a special (read: much lower cost) policy; Stanford's Fair Use Project will provide pro bono legal services to the film. If we can't provide pro bono services, then Michael Donaldson's firm will provide referrals to a number of media lawyers who will provide representation at a reduced rate. Either way, filmmakers will be able to rely upon "fair use" in the making of their film. The Fair Use Project and Donaldson will defend the filmmakers if their use is challenged. Media/Professional will cover liability if the defense is not successful.

This is a huge breakthrough. As many of us have been arguing, the real constraint of fair use comes not from the courts, but from those in the market who are trying to avoid any risk of copyright exposure. This market-based solution will now clear the way for many films to be released which before could not secure insurance. And we are eager to use the inevitable cases that will emerge to solidify the fantastic Statement of Best Practices developed by the Center for Social Media.

The project has an advisory board: filmmakers Kirby Dick, Academy Award-nominee Davis Guggenheim, Arthur Dong and Haskell Wexler; professors Peter Jaszi and me; and intellectual property attorneys Michael Donaldson and Anthony Falzone.

To remix a bit EFF's slogan: Fair Use's posse just got a whole lot bigger -- and with insurance now to boot.

In the old days, we used to call this "preserving the end-to-end character of the Internet." Then Tim Wu renamed the debate "network neutrality." And now media as cool as this:

Save the Internet | Rock the Vote

Found at foureyedmonsters.com. Pointed to it by B. Andy (thanks!).

Two friends of Creative Commons have been nominated for won 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.

Friends are to inspire. And so they have.

You may have been reading about the recent spat involving C-Span and Speaker Pelosi over copyright and the Congressional Record. Well, longtime champion of many things great -- Carl Malamud -- has been building a bit of a hack to deal with at least part of the problem.

As he explains, video of Congress engaged in its official business comes in three flavors:

"1. the floor proceedings, which uses government cameras and
everybody (including c-span) pretty much allows folks to grab.

2. hearings that c-span does, which they tightly defend copyright on.

3. the stuff the committees puts directly on the web."

Many of us believe that if C-Span wants to exercise control over the stuff it films -- as it has in many documentaries I have helped with -- then it's time we find someone else to build a Congressional Record that "the people" can use.

Carl has been building a hack to do just that. As (1) has pretty much taken care of itself, and (2) requires Congress giving access to hearings to entities that won't leverage that access into control (not likely anytime soon), he's focused on (3). The current problem with (3) is that the content (filmed using government cameras, just as with (1)) is offered sometimes "live only," and otherwise in a streaming format only. Carl has built some tools for "ripping all congressional streams starting with the house and posting them in a nonproprietary format for download, tagging, review, and annotation at Google Video and another copy at the Internet Archive."

Read more at Boing Boing.

But all this raises a much more fundamental question.

As more and more "notice and take-downs" get directed at people doing political remixes of candidates and their speeches, it's time for a candidate to take the lead to assure that the web can be used for politics (without the mess of copyright). What about a pledge not to appear on a program that won't promise not to prosecute people who do remixes (as opposed to simply distributing the whole show)? (That's three negatives in one sentence -- go slowly.)

Let's see who is really for (and who has the courage to support) freeing political speech.

Creative Commons is still accepting applications for summer interns. If you're interested, check it out here.