I'm in Brazil, just finished with a lecture, about to get on a plane back to the states. When I arrived last night, my inbox was full with a bunch of emails about an anti-Obama remix video that had been taken down from YouTube for copyright-related reasons by an pseudonymous user on YouTube named TheMouthPiece. I tried to follow the links to get to see it, but couldn't. Finally, I was able to locate it, and make it available here for the purpose of demonstrating just what's so wrong with the law of fair use and why it has got to change. (I'm forced to host this myself because of course no video site will not carry it, and I don't want to further complicate the .torrent debates.)

First, and obviously, for anyone who has followed my work, I don't support the substance of the video. It makes some interesting and important points about the problems leading up to this crisis. But I think the suggestion about Obama at the end is incorrect.

But second, and obviously again for anyone who has followed my work, the fact that this video was suppressed is ridiculous. (I don't credit the suggestion it was suppressed for political reasons, though of course, the suppression lawyers don't consult me, so I wouldn't know.)

That it was suppressed, however, is a feature/bug of current copyright law. The video is making a powerful (if wrong, imho) argument about the source of responsibility for this financial mess. It uses text (sparsely placed, as is my own style too, though the author needs a better font), images of newspaper articles, pictures of the candidates, and clips from television, all to the end of making the political argument.

That part's relatively easy from a fair use perspective. What isn't is the music. As is increasingly the style for amateur (in the good sense of the word -- people who do what they do for the love of what they do and not for the money) remix: music is attached to parts of the video to give it a special boost in social meaning, or significance. The cultural reference enhances the political. It becomes part of the story.

So, for example. when describing how Fannie and Freddie gave low interest and no interest loans, the music is Dire Straits "Money for Nothing." And when talking about the speculation, Talking Head's "Burning down the house." When talking about the influence of money inside the campaigns, AcDc "Money Talks." And when talking about how "it ends now" if (as the author but not this author hopes) Obama is defeated, the music is "Survivor - Eye of the Tiger." In each case, the music amplifies the message in powerfully and socially relevant way.

[BUT NOTE: important disclaimer -- I am completely ignorant about the culture stuff, and have struggled to identify the music using lyric search engines. I have created a special page on my wiki which identifies all the songs I could identify, tagged to the seconds on the video. I have not had the time to verify this, or ask others to correct it. Please help by watching the video, and correcting any errors you see, and by filling out the description of the link between the lyrics and the message of the video]

So is this "fair use"? Well most of us would hope it is, but there's no clear authority to support that idea. Music is historically (meaning over the past 20 years) extremely tightly regulated. We have no clear or good "fair use in music cases" except when the music is being used to criticize or comment upon the author whose music was being used. So, the Campbell case in the Supreme Court involved a parody of Roy Orbison's song. That, the Court held, was fair use.

But in these amateur remix cases, the music isn't being used to comment upon the copyright holders -- ACDC isn't being used, for example, to criticize them. And for this category of use, there is, again, no clear authority supporting a claim of fair use -- which the record companies interpret to mean it is clearly not fair use.

Maybe it is. Maybe it isn't. But this whole mess demonstrates clearly, in my view, the need for us to get beyond the "fair use" analysis. This is an amateur remix of popular culture. It should be completely exempt from copyright restrictions. When it gets used commercially (by, say, YouTube), then, in my view, YouTube should be responsible for the work it is profiting from -- through a flat, collective license, for example, either created by law, or negotiated by the parties. But only then should there be a "copyright event." Until it is used commercially in that sense, the creator should be free to (re)create without employing a lawyer to muddle through the mess of complexity fair use law is. The law has no useful function in this context. Or put differently, amateur remix needs to be deregulated.

Instead, of course, the law today has it exactly backwards. It is the creator of this work who is the alleged copyright infringer under current law. And YouTube who is immune from liability so long as it removes the work as soon as it can.

This has got to change. We should be regulating in copyright where it makes copyright-sense to regulate. And in my view, it makes no copyright-sense to be regulating this kind of use. Sure, Tom Petty wouldn't be happy with his work being associated with a conservative message. But so what. When your song is famous enough to provide this sort of support in a message like this, you've lost control of its meaning. And no doubt, you've been well compensated for that as well.

Let's hope this bit of copyright over-regulation might begin to wake the Right up to the need for a significant bit of deregulation in the field of federal culture policy (aka, copyright law).

The American Editorial Cartoonists are a bit premature in their confidence about the death of the "Orphan Works Act." I wish they weren't. As I've argued, this is a terrible solution to an important problem. The Senate has passed the bill. The House has now not. But until the end of this Congress, this insanely bad idea will not die.

Send to five (Republicans not included).

I received this letter from the McCain/Palin campaign today in response to our call for them to support "open debates." Wonderfully progressive and right from these candidates on the Right.

A research assistant, Sina Kian, observes:

When Pres. Bush and Sec. Paulson proposed a bailout, it was three pages. When the House was done with it, it was over 100. When the Senate voted on it last night, it was over 400. I thought you'd be interested in reading about some of the earmarks that were slapped on. [McCain criticizing]

Particularly bizarre was the tax exemption for wooden arrows used by children. In any event, it's sad to see a government so addicted to earmarks that it can't even handle a crisis without involving them.

You wouldn't think so reading stuff here (exclusively politics focused, sorry for that), but I've been following the recommendations on the wiki and elsewhere, and reading tons about corruption in many different contexts. The field of medicine, however, continues to be the most striking to me. Here's the latest from the great Senator Grassley, as described in an article in the WSJ:

A prominent Emory University psychiatrist failed to tell the school about $500,000 he received from drug maker GlaxoSmithKline PLC while heading a government-funded research project studying Glaxo drugs, Sen. Charles Grassley alleged.

(Thanks, Birgit!)

UPDATE: The psychiatrist has stepped down.

(Thanks again, Birgit.)

One of the very few times when I'm happy her work has not prevailed, Gigi Sohn of Public Knowledge on the story of the demise of the Orphan Works Bill.

Harvard Professor Elizabeth Warren tells the (incredible) story of a rule imposed on witnesses who wanted to testify in a credit card hearing that would permit the credit card companies to reveal their private financial data. "Only fair," defenders of the rule stated, such as Congrssman Bachus (R-AL). But when Warren asked whether the credit card companies would have to provide support for the factual claims they made, the answer was silence. Only consumers have to waive their privacy to testify. Credit card companies get to say whatever they want, without having to establish any factual basis.

It has surprised me that this, the tremor before this recent financial disaster, the Keating Five scandal, has not been at the center of this campaign before. But now, apparently in response to Palin's suggestion that the fact Obama knows Ayers is relevant to whether he should be president, the Obama campaign has released this very strong 15 minute documentary about the Keating scandal.

For those not old enough to remember, here's the outline: 5 Senators, all of whom had received campaign funding from Charles Keating, intervene with regulators to get them to overlook criminal behavior by Keating, leading to the collapse of Lincoln Savings, leading to a $3.4 billion bill for Americans. The only one of those 5 Senators to receive both personal and political benefits from Keating: McCain.

Fair? Totally relevant to the question whether the judgment of this candidate is the sort that's needed at this time. Totally relevant to the basic question whether his philosophy -- deregulate -- is what this sector needs at this time.

Wise? Not sure. I'm not sure Americans distinguish between hard-hitting-and-fair criticism (which this is) and hard-hitting-and-unfair criticism (which Palin's is). One might worry that they're "burn[ing] down the house to roast the pig" but I assume they've reckoned that.

But ugly? You bet.

Barack Obama has reaffirmed the position he took in the primaries and asked the Debate Commission to support "open debates." Here's the letter.

Three key open questions:

1) Will the media pool choose to put their video of the debates in the public domain, so folks can freely blog key moments and share them without fear of being deemed a lawbreaker?

2) Will Tom Brokaw use some bottom-up debate questions collected and voted on on Google's site, in addition or in place of the top-down ones the Commission collected?

3) Will the Commission adopt these principles for future debates, now that the candidates from both major parties embrace them?

And one final point: Now that both Senators have affirmed the "open debate" principles, its time for citizens to do the same. Please sign up below to support the call for "open debates." Once again, the original letter to McCain and Obama is here.

If you've not become a reader of factcheck.org, you should. They work too hard, in my biased view, to present flaws on both sides. But that's a virtuous sin in such an organization. It's review of the VP debates is great.

Ikeda-san reports two bits of very good news from Japan:

On Sep. 18, the Council of Culture gave up the extension of copyright from 50 years after the death of the author to 70 years. Two years ago, the Council proposed the extension to follow the "global standard", but many people on the Web objected against the legislation.

Last week the Council of Information and Communication decided to scrap the B-CAS, the notorious conditional access system for free broadcasting. Due to this change, "Dubbing Ten", which forbids copying the programs of digital broadcasting more than ten times, would be abolished, because it is enforced by the encryption of B-CAS.

Read more on his blog.

Now that both campaigns have signed on, we've focused the call for open debates to try to get some real progress. The new letter is below. Meanwhile, please sign up below to support the call for "open debates." (The original letter to McCain and Obama is here.)

From CBS:

Some of the questioners said they were scared of an Obama presidency, and one woman said she couldn’t trust Obama because “he’s an Arab.”

McCain shook his head. “No ma’am, he’s a decent family man, a citizen, that I just happen to have disagreements with on fundamental issues, and that’s what this campaign is all about.”

Sorry to disappoint, but my new book, Remix, is not "A Defense of Piracy," whatever the Wall Street Journal's headline writers may think.

The McCain/Palin campaign has written a fantastic letter to YouTube demanding that they start getting real about the response they're giving to notice and take-down demands of material that "are clearly privileged under the fair use doctrine." Here is the letter. Bravo to the campaign.

Jesse Dylan (director of the extraordinary "Yes We Can" video) has made a film about Creative Commons. It is released today, the first day of our annual campaign.

Chris Soghoian of Berkman has a nice post about McCain/Palin's call on YouTube to review takedowns from campaigns before taking them down. He criticizes it as "special rules."

True enough, it is a special rule. But isn't it appropriate? For here's the new game for politics in the YouTube age: complain enough to get an account shut down (according to YouTube testimony, 3 complaints gets an account shut down (pg 17 near the bottom), and ideally, do it at the critical time just before an election.

Of course, no one should be subject to this arbitrary game. But especially a campaign. Let's start here and begin to build out from a clear example of bad incentives.

YouTube has responded to McCain/Palin's call for more process before taking political video's down.

As reported in Politico, Grover Norquist has joined the Open Debate Coalition.

"I'm happy to join the Open Debate Coalition in calling for dismantling the Commission or fundamentally reforming it so it is accountable to one constituency only: the public."

Enough of that, and enough of them. Join us now in a call that the Commission formally release the debates to the public. Either ping the Executive Director or sign-up at OpenDebateCoalition.org. Join us later to help remake this Commission.

Here's what I was instructed to spam my friends with by the ever-vigilant Change Congress staff. I'm spamming my blog readers instead:

Dear Friends,

My organization needs your help.

Change Congress is asking candidates for Congress and current members of Congress, their stance on key reform issues from earmark reform to taking money from lobbyists and PACs. The goal is to provide a user-friendly map of where our politicians are when it comes to these key reform issues.

We've setup two ways people like you can help with our new iPledge Project:

1. Pester Your member of Congress:
Simply by going to the website below you can actually find your member of Congress as well as candidates in your district/state and drop them an email, letter or a phone call asking them to tell us where they stand on our issues. We provide scripts and all you have to do is press SEND.

http://change-congress.org/ipledge/

2. TAG a politician
Stumble upon an article or press release where your member of Congress says they support earmark reform? We're asking folks to attach these articles to the individual webpages of each politician by "TAGGING" it. This will let the community see what each politician has stated publicly on each of these key issues.

http://change-congress.org/tag/

We'll be meeting at our offices every Tuesday, Wednesday and Thursday evening through October between 4PM - 7PM. Please join us for drinks, snacks, and laptops!

Change Congress
543 Howard Street (btween 1st and 2nd)
5th Floor
San Francisco, CA 94105

The future of democracy will not simply rely on grassroots but also on the "netroots" -- bands of internet users sharing and creating information with each other through websites.

I hope you can help!

Thanks so much,

REMIX has been released. There's a site with stuff about it. There's a link to buy it on Amazon. And there's a page with reviews, including the one by L. Gordon Crovitz, former publisher of the Wall Street Journal.

Doug Lichtman, a professor of law at UCLA, has a new IP-related podcast, The IP Colloquium. The first show is a fantastic interview with the EFF's Fred von Lohmann (and CLE credit is available!).

res ipsa.

And note I talk about this blog in the book. If Three Blind Mice wants to out himself, I'd be happy to send him a copy.

At the bottom of the Remix page, you'll find the name of two souls whose help I'm grateful for. J. Christopher Garcia was the designer of the site, and M. David Peterson did the heavy lifting. Thank you to both.

TransparentDemocracy.org has gone beta. This very cool sites helps you sift through election recommendations as well as corporate ballot measures. The gist is this: you pick your recommenders, and you can see how they rank candidates or ballot measures. The site will eventually be a platform for any set of recommenders, so its aim is to become as general as possible. But especially for us California voters (with pages and pages of incomprehensible ballot measures) this will be an enormous help. In the extended entry below, I include an email from the creator of the site, Kim Cranston, explaining a bit more.

Harry McCracken has "25 Arguments for the Elimination of Copy Protection."

Julian Sanchez has a fantastic piece about the fabrication of a (still used today) statistic about the economic harm caused by "piracy."

Yosem's diary on Daily Kos has a transcript of a McCain push polling call. It is extraordinarily depressing to read, especially when you remember that it was this tactic precisely (employed by Bush) that derailed his 2000 campaign in South Carolina.

Just over 6 months ago, I agreed with Joe Trippi to help start a movement for fundamental reform in Congress. We understood that this was a long term project. But as we felt then -- and as the events of the last 6 months only confirmed -- we face, as Al Gore has put it, "a democracy crisis." And until we fix this, we won't fix any of the critical problems that face our society.

Many of you urged me to do this. And so I'm asking now for a favor in return. We've started. We've made important progress. But we need you now to help us make an important mark before this election comes to an end.

Our first project has been to get Members of Congress as well as candidates for Congress to take a stand on our issues of reform. We don't demand that they agree with any particular reform (yet). We simply call upon them to have the courage at least to say where they stand.

The five people you see pictured above are the first five Members of Congress to take a stand: Barney Frank (D-MA), Lynn Woolsey (D-CA), Jim Cooper (D-TN), Roscoe Bartlett (R-MD), and John Tierney (D-MA). Four Democrats, and one Republican have signed a pledge to support planks in our platform for reform. These 5 are joined now by more than 150 challengers who have taken a stand.

That's a start. But it's not good enough. And so I'm asking again: please help us get Members and candidates to take a stand. You can join our "pester" campaign by clicking here, and we'll make it extremely easy for you to write, or call, or email members or candidates who have not yet taken a stand.

This should be a simple thing in a democracy: Tell us, candidate, what you believe. It should be a hard thing to hide from. Yet in the politics of today, the simple thing is to hide. Help us make the simple hard.

Meanwhile, here's a link to the latest version of the Change Congress talk.

This is the most important, most profound, more powerfully argued 7 minutes of this campaign.

The Guardian gave me an editorial today: In Praise of ... Lawrence Lessig.

by laihiu at Flickr

Spence Ante didn't like Remix.

But Remix is Lessig's weakest effort to date, a derivative essay that rehashes a lot of his older work. Like Martin Scorsese doing another mobster flick, Lessig seems uninspired, groping for a fresh take on familiar themes. Most annoying, he devotes only the last 35 pages of the book to his reform plan, and some of those ideas are not even that new.

It was a tough morning swallowing Spencer's review. My reaction was -- "really, that's what you see in the book?!" None of the key points that made it worth my writing the book were visible to him (or at least, as evinced by the review). And that, frankly, was astonishing, and astonishingly depressing.

But it is the end of the day (here in Hong Kong), and with it comes a review by Kathleen Fitzpatrick, that is actually about the stuff in this book that is what the book's about, and new (and of course, as I think, important). What the book "is" of course is hard to say. But her review is actually a review of the book I thought I wrote.

Most amazing fact of the day however: I posted a Flickr image of the cover of the book to distract from the Spencer review. I didn't know the photographer, and certainly didn't know where she was from. I'm not even quite sure how I even came across the image. But after my talk here in Hong Kong, she came up to me. She had seen the image on my blog.

Spencer asks for a review of his review. I'll reply to one part: the suggestion that the work is "a derivative essay that rehashes a lot of his older work." That would be true if the book were, as he describes it, about "curtailing creativity, innovation, and even some of our most basic freedoms." But that's Free Culture, not REMIX. As I describe in the preface to this REMIX:

"In the past, I’ve tried to advance this view for peace by focusing on the costs of this war to innovation, to creativity, and, ultimately, to freedom. My aim in The Future of Ideas was to defend industries that never get born for fear of the insane liability that the current regime of copyright imposes. My subject in Free Culture was the forms of creative expression and freedom that get trampled by the extremism of defending a regime of copyright built for a radically different technological age.

But I finished Free Culture just as my first child was born. And in the four years since, my focus, or fears, about this war have changed. I don’t doubt the concerns I had about innovation, creativity, and freedom. But they don’t keep me awake anymore. Now I worry about the effect this war is having upon our kids. What is this war doing to them? Whom is it making them? How is it changing how they think about normal, right-thinking behavior? What does it mean to a society when a whole generation is raised as criminals?"

This wasn't a focus in Free Culture. It was a passing thought. It is now the frame for REMIX, the motivation for trying to place in the center the good that this net might offer, as a bribe to get policy makers (aka, citizens) to stop this hopeless war, and sue for peace.

That's one focus (and new) at the core of the book. The second is the idea of "remix." REMIX, unlike Free Culture, is focused on a particular kind of creativity. I hadn't recognized, or even thought carefully, about this creativity when I wrote Free Culture. But the Sousa quote I've referred to again and again (railing against "talking machines," he observes "we will not have a vocal cord left. The vocal cords will be eliminated by a process of evolution was was the tail of man when he came from the ape.") got me to think about the importance of "democratic creativity" -- meaning a kind of creativity that ordinary people engage just like the professionals. This focus on the amateur vs. the professional of course is a theme of others -- Benkler, most importantly. But I liked the way it explained something about how creativity was different in he 20th century from every other century, including the 21st.

The third idea in REMIX is the one Spencer's review focuses on -- the emergence of what I call the "hybrid" -- and here Spencer has nice words.

Although this section borrows heavily from the work of others, including The Long Tail by Chris Anderson and Wikinomics by Don Tapscott and Anthony Williams, Lessig breaks new ground.

These are three ideas, or frames, that move REMIX beyond Free Culture. Different points, not "rehashing" of old. Is it "derivative"? Well, of course, it is the thought that I currently have about a subject I've been working on for a decade, deriving from thoughts I had before. But I had thought — I had hoped — the new added something to the old. These three things frame the new.

Finally, Spencer criticizes my 35 pages of prescription at the end.

Most annoying, he devotes only the last 35 pages of the book to his reform plan, and some of those ideas are not even that new.

I'll leave it to others to tell the story of Creative Commons. Understanding requires a less self-interested source. But I'm not sure I get what's "annoying" about the 35 pages. I'm not sure how "new" the suggestions are. I'm more concerned with whether they're true. Spencer seems upset that he has heard versions of them before (because the proposals I advance in fact are not the proposals I had advanced before). I guess I'm not convinced of the fairness of that annoyance. This is a second book on the culture issues. The things I believed in book one I still believe in book two. Sure, it would have been more interesting had I come to believe completely different things. ("Wait a minute -- Valenti is right. What was I thinking!") But I didn't. I still think the copyright system regulates too much. I still believe social resources should be devoted differently. I believe even more now in the "humility" that law needs.

Though there are things that remain the same, I wrote Remix because the work of many others had helped me see important parts of this debate differently. Most importantly, the good, the optimistic, the promising parts. Remix and hybrids: they give us yet another reason to end this war.

But enough. Spencer's a good soul. He's written well for Businessweek, and while I'm just midway through his book, Creative Capital, I'm sure I'll have nicer things to say about his than he about mine. I've said this book was essentially finished a year ago. I've moved on to different work. So "you won't have [Free Culture Lessig] to kick around any more, gentlemen, because this is my last [free culture book]." (And see, if I were 15, and had any real talent, I would have taken Nixon's press conference, superimposed my face on Nixon's, added some Gil or NIN music, or whatever.)

Proposition 8 is the CA initiative to amend the CA constitution to ban same-sex marriage. This is far from my usual field, but it is an issue I feel strongly about. Click for 8 minutes of a diversion on 8.

A powerful and good read.

As many have, I've been eager to understand the terms of the settlement in the AAP/Authors Guild v. Google case (Google Summary, Actual Settlement). After spending some time studying it, here are my thoughts. (4TR: I was not part of any of these settlement negotiations so all this was news to me).

IMHO, this is a good deal that could be the basis for something really fantastic. The Authors Guild and the American Association of Publishers have settled for terms that will assure greater access to these materials than would have been the case had Google prevailed. Under the agreement, 20% of any work not opting out will be available freely; full access can be purchased for a fee. That secures more access for this class of out-of-print but presumptively-under-copyright works than Google was initially proposing. And as this constitutes up to 75% of the books in the libraries to be scanned, that is hugely important and good. That's good news for Google, and the AAP/Authors Guild, and the public. (My favorable views about the AAP at least are not, of course, reciprocated.)

It is also good news that the settlement does not presume to answer the question about what "fair use" would have allowed. The AAP/AG are clear that they still don't agree with Google's views about "fair use." But this agreement gives the public (and authors) more than what "fair use" would have permitted. That leaves "fair use" as it is, and gives the spread of knowledge more that it would have had.

The hard issue here will be in the details (surprise, surprise). The agreement calls for the creation of a registry to be operated by a nonprofit corporation. That corporation will be governed by a board comprised of publishers and "authors" (meaning authors participating in the law suit). That corporation will administer the payments to authors and publishers that flow from the agreement. It will also administer a registry that will make it easier for works to be identified, and owners located.

The hard question for the registry is how far they will go to support the range of business models that authors and publishers might have. E.g., Yale Press "Books Unbound" and Bloomsbury Academic both have Creative Commons licensed authors. Will the registry enable that fact to be recognized? Indeed, though the comment was made by someone from the plaintiffs' side that it would be "perverse" for authors to choose free licensing, it is perfectly plausible that an author would choose to make his or her work available freely electronically, but contract with one commercial publisher to deal with selling the physical book, or licensing rights commercially. That, again, is the Bloomsbury Academic business model. Ideally, this non-profit should encourage the widest range of rights-respecting business models. One clear signal about what kind of organization this is will come from this.

But key to the good in the agreement is that we don't have to trust the nonprofit to do good here. Google has committed both to making the data it can control (not private data about telephone numbers and contact info, but public data about copyright registration, terms, etc.) nonexclusively available, and more importantly, downloadable by anyone who wants to build a competing and complementary database. It has also reserved important safe-harbors for its incredibly valuable public domain collection (which includes books people get free access to, and can download for free).

Here, too, however, there is an important challenge for Google. It has provided important value by making available works that have no rights attached to it. But it should do more to make available works that have some rights attached to it. Critical for evaluating whether the long term interest of Google is GOOd or GOOey, Google needs to build into its architecture assets that are licensed freely, or under noncommercial terms, to complement the assets that it claims are free for "noncommercial" download (namely, the public domain works it has). Acting to clearly support the non-proprietary movement as well as the proprietary is an important way for it to show that it stands in the middle, and that it, with the AAP/Authors Guild, have now done some real good.

The biggest loser in this whole battle is the Orphan Works legislation. If anyone needed evidence to demonstrate that it is WAY TOO EARLY for Congress to be passing massive new bureaucratic overlays to copyright to deal with the important problem of "orphan works," this is the evidence. Let's let this private alternative develop, while Congress puts away its billion-factor balancing tests for regulating access to "orphan works." For earlier rants against the Orphan Works bill, see:

Copyright Policy: Orphan Works Reform

Internet Law: 2.5 done (round II on Orphans)

And here's a video I did years ago against the original Orphan Works proposals.

And a video I did long ago about whether Google's use was "fair use."

Robert Greenwald and friends put together this extraordinary video for the extraordinary REMIX book launch party in San Francisco, obviously with the intent to demonstrate just how remix can be an extraordinary distortion, because obviously, I don't use the word "extraordinary" so frequently.