Lessig

Right-to-tinker maven Ed Felton is skeptical that copyprotection would be placed in the network. "From an engineer standpoint, that assumption looks wrong to me," he says. But what if we looked at Fritz "not an engineer" Holling's perspective? The point of my article is that Congress is pushing copyprotection in the network, whatever engineers would argue is ideal. A differend DRM would undermine that push. (But so too would a different Congress for that matter.)

The lack of broadband access at hotels drives me nuts. It was bad enough when you had to carry a screw driver and alligator clips. But it's been years since cheap and effective broadband technologies should have been deployed in major hotels. So it was a pleasant surprise when I received spam about this offer from W Hotels -- offering "free" Broadband Internet Access plus telephone calls -- for stupid people, apparently.

Doug Isenberg, whose GigiLaw.com and its companion Guide are a great resource, sent along some more examples of awful wireless marketing.

I'm in Japan for the fall, so I was eager to see MovieLink come online (not much on Japanese tv for a language-idiot like myself). As I was told by someone from the other side, MovieLink was intended to remove the "excuse" people had for "stealing" movies online -- once a "cheap, fast system" was offered, there was no good reason not to pay. So does that mean that because non-Americans, and non-MicrosoftOS users don't have a way to access MovieLink, they have an excuse to "steal"?

This should be a general rule: If you don't make it cross-platform compatible, you're not welcome on the Internet.

Insanely destructive problems with my machine here in Japan, so I apologize for the silence and unanswered emails. To my pleasant surprise, however, I discover that my Powerbook G4 has a world wide warranty. So after finding a number of the Apple Japan website, I called to get support. The Apple Store helpfully gave me an English speaking "toll free" number to call. At this point, of course, I didn't care squat about the toll; I wanted a voice that could fix the problem. I dialed the number. Couldn't connect. Over and over again, no luck. So I called the Apple Store back. "Are you trying to call this number from a business or university?" "Yes," I told her. "You can't call this number from most businesses or universities. You'll have to go to a payphone on the street and call from there." "Isn't there another number, maybe a non-toll free number I could call?" "No, only the toll-free number. We don't want to charge for support."

So in 1998, as a Christmas present to my parents, I promised to give them broadband service when it became available. They live just outside Hilton Head, SC. No San Francisco, no doubt (where broadband at 1.5 mbs is available at about $50 a month), but still, no backwater.

For the first time this year, service is getting close. A company called Hargray promises 768kbs for the amazing low price of $100 a month. No cable service available from AT&T. And no service available from anyone in the 1.5 mbs range.

Meanwhile, to repeat again: Here in Japan, they are selling 100 mbs for $50/month, 12 mbs for $25.

Tim Wu has a nice paper about "network neutrality." The basic idea is familiar: the original end-to-end internet is increasingly under threat as network providers develop technologies to discriminate among network users. For many years, this fear of discrimination led many to support "open access" campaigns � requiring providers to permit competitors to use their lines. Competition would, the argument went, weaken the incentives for certain forms of discrimination.
"Open access" has worked extremely well in Japan (where you can get 100 mbs for $50 a month), but it didn�t work well here. Tim�s proposal is for a different form of regulation aimed at neutrality. I recommend it strongly, and would be eager to see any feedback.

I know it's trendy to say nasty things about Amazon (one-click, etc.), but man do I wish they'd expand into really useful services, like banking. I've been struggling through nightmare experiences with "online banks" -- none of which have online services that are half as reliable or convenient as Amazon.

I've been through Merrill Lynch (awful awful awful), and then TD Waterhouse (sleek, but thin on service: no download to Quicken, for example), and now the latest was Citibank.

Citibank was recommended to me by Intuit. Said to be one of the "best" online banks. So I applied -- in February. Today, three months and at least 10 calls and 5 faxes later, I stopped the "application" process. Seems they were unable to verify my address (a house we've owned since September 2000) after my wife and I sent in document after document. Today it took them 15 minutes to determine that they weren't "sure" which documents would be needed, but then they helpfully gave me a list of three more I could fax in and they'd then determine whether that was enough.

Forget it, I told them. So I'm back to square-one: Does anyone recommend an online bank which: (1) has direct download to Quicken, (2) Amazon-like-reliability online?

Chris Kelly has been keeping a keen eye out for silliness. Here's his latest find.

So I have this from an extremely reliable source, who vouches totally for the facts that follow.

Story one: Last month while visiting Charleston, three women went into a Starbucks. They were spending the weekend together and one of them had a disposable camera with her. To commemorate their time with one and other they decided to take round robin pictures while sitting around communing. The manager evidently careened out of control, screaming at them, "Didn't they know it was illegal to take photographs in a Starbucks. She insisted that she had to have the disposable camera because this was an absolute violation of Starbuck's copyright of their entire 'environment'--that everything in the place is protected and cannot be used with Starbuck's express permission.

Story two: At our local [North Carolina] Starbucks, a friend's daughter, who often has her camera with her, was notified that she was not allowed to take pictures in any Starbucks. No explanation was given, but pressed I would think that the manager there would give a similar rationale.

I wonder what would happen if hundreds of people from around the country experimented this holiday weekend by taking pictures at their local Starbucks ...

So on May 22, at 11:49am I posted my offer to spammers that I'd be happy to read their spam sent to a special spam email address if they promise to pay $500 for the privilege. At 9:58 this morning -- less than 2 days later -- I received my first acceptance. How exciting!

Mr. Richard Bennett accuses me of "latent fascism" for deleting a comment from a post. In fact, I have never deleted any comment from any post, his included. I should think, rather than calling someone a fascist, the decent thing to do when one suspects such a thing is to simply ask.

I'm happy to have you "disagree with [me] on my blog," Mr. Bennet. And as to the claim you say you posted, viz, that I "can't be that ignorant" about the Sony Bono Act "harmonizing" the US term with the EU.: in fact, as Professor Karjala nicely demonstrates, the Sonny Bono Act did no such thing. That's precisely why members of the EU are now pushing to increase terms for recordings -- to catch up to the longer term that US law sets.

And if you have trouble posting a comment again, let me know. I'm happy to help.

another cost of losing eldred.

John Gilmore wrote Declan a letter about an extraordinary measure of our times. Gist: John was wearing a "Suspected Terrorist" button on a flight to London. BA turned the airplane around on the ground and returned to the terminal to enable the captain to eject him. Read the full story.

I got an email from a reader. "I'm reminded of ibex," she wrote. Indeed. Here's a couple pages from Code and Other Laws of Cyberspace.

As Michael Geist writes, it is increasingly the practice of the US government to export its copyright policy though bi-lateral trade agreements. One example is the trade agreements being concluded with Australia right now that will require Australia to increase its copyright term to life plus 70.

The Allen Consulting Group has prepared what it apparently considers an economic analysis of the proposed Term Extension. The report was commissioned by the Motion Picture Association, among others. The report is embarrassingly poorly done.

I describe some errors in the extended entry below. But I hope for the Allen Consulting Group that this report is not representative of its work in general.

Last month, I posted a link to some free software for Mail.app OS X that Jonathan Nathan is offering under the GPL. This code was designed to allow a user of Mail.app to move a message to a folder with a single keystroke.

Since then, there's been some progress in the Mail.app app, but not as much as one would think. Apple has released Panther, and Aaron has released a script that does the same thing within Panther.

Both Jonathan's and Aaron's nicely move a message to a folder. Aaron's is built to enable the binding of a keystroke to an AppleScript directly. But both have a common weakness: After a message is moved, the system forgets which message it has last selected.

Weird, because, e.g., this very simple script within Microsoft's Entourage does the same thing, but without forgetting the last message selected:


--Open this script in a new Script Editor window.



tell application "Microsoft Entourage"

    set curMsgs to current messages

    repeat with theMsg in curMsgs

        move theMsg to folder " friends" in folder "Archive"

    end repeat

end tell

(Update:: this cool applescript formatting trick is thanks to another Jon Nathan script -- available here)

Note in Entourage, if you save the script with a "\cX" in the script name, then ctrl+X will run the script.

It is surprising, one might think, that Microsoft's mail app operates more robustly with AppleScript than Apple's. As well as a bit frustrating.

Andy Orlowski has a wonderfully argued but sad piece about the sale of mp3.com to CNET. As he reports, the archive of music that was mp3.com will be destroyed. As Andy writes,

"Not since the Great Leap Forward has there been such a destruction of the commons. Back then, for political reasons, millions of books were burned. Now, for very sensible commercial reasons that we must not question, millions of MP3s will be lost to the commons. You have precisely seventeen days to grab the good stuff (and, Steb Sly - we hope you have a backup) ... CNET will follow Wal-Mart, Real Inc. and Apple Computer into the DRM business, infecting as many computers as they can with restrictive software controls that close what for a brief period has been an open computer platform. They all hope that this tentative business model, the terms of which are set by the entertainment "industry", will somehow turn them a profit. Or at least give the illusion of doing so, until a better idea comes along.

I've been lamenting the fast slide of mp3.com for sometime now. Now there's nothing more to lament. CNET's got a great domain name. And beyond that, Michael Robertson's vision of a new industry is over.

I apologize for the silence, but we've been in Japan this week announcing iCommons in Japan. (More on that soon). But after reading this extraordinary document by Darl McBride of SCO infamy, I couldn't resist canceling this morning's meetings to respond.

From the start of this pathetic lawsuit, Eben Moglen of the Free Software Foundation has argued that there was nothing behind the SCO claims. His arguments are persuasive. But if you want a clue of just how clueless this case is, consider the constitutional arguments made by SCO.

So we have returned from Japan. Willem's passport is stamped with its first stamp. But there was a moment before we left when we were uncertain we would go. Bettina and I had purchased economy seats months ago, which we had upgraded (the one good from traveling too much). We had confirmed we didn't need a ticket for our 3 month old child, and had reserved bulkhead seats to make the flight easier.

When we arrived at the airport, we were told we needed a ticket for the child. And because we were now sitting in business class, that meant we would have to pay $650 for the child -- even though he obviously would occupy no seat, and consume no service at all. The agent behind the desk was very understanding and sympathetic. But rules were rules were rules.

I can understand United's desire to keep kids out of business class. As President Reagan taught us, if you tax something, you get less of it, and United is perfectly rational to want fewer children in its business class. But at least they should redistribute the income from its baby tax to the people sitting near the baby (a baby bonus coupon!). For while Willem was an angel, had he not been, it would not have been United revenues that would have suffered.

So I am just returning from the World Summit on the Information Society (WSIS) in Geneva -- a fantastic (in the sense of Jules Verne) and depressing (in the sense, would there really be a digital divide if the money spent on this were instead given to the developing world?) event. Some nits follow. Other thoughts later.

WalMart's launched a music downloading service. For just 88 cents, you can download a song in a Windows Media Player format. I tried the service. For 88 cents I bought a Beatles song (they've got a total of 12 available. Wuhoo!). When I went to play it, however, it wouldn't. LiquidAudio's server was not found.

But the real devil here is not that the service doesn't (yet) work. It is the details of the TOS. These are among the most restrictive in the business, authorizing 10 burns from 3 machines, but requiring you promise:

"You may not reproduce (except as noted above), publish, transmit, distribute, display, broadcast, re-broadcast, modify, create derivative works from, sell or participate in any sale of or exploit in any way, in whole or in part, directly or indirectly, any of the Products, the Service or any related software. You may not reverse engineer, decompile, disassemble, modify or disable any copy protection or use limitation systems associated with the Products. You may not play and then re-digitize any Products, or upload those Products to the Internet. You may not use the Products in conjunction with any other third-party content (e.g, to provide sound for a film). You may not sell or offer to sell the Products, including but not limited to, posting any Product for auction, on any Internet auction site. All Products are sublicensed to you and not sold, notwithstanding the use of the terms "sell," "purchase," "order," or "buy" on the Service or in this Agreement."

Worse still, if you go to this page, you'll be informed that "What's more, you'll enjoy the same usage rights for ALL the music you purchase" as if you had purchased the CD. Here is where all the action is. What's happening with this download world is that the "rights" people have with music are now to be defined by licenses. Long before we have any useful litigation about the fair use rights associated with music, the licenses will define that you have only the right to play the music, and only the right to burn it 10 times. Anything more -- for any reuse, mixing, transforming, even for noncommercial use -- is not your "right."

This is the real aim of the "war" against "piracy." Focus the attention of the world on "pirates" and then "solve" that problem in a way that effectively removes all other creative rights for consumers. This is a total perversion of copyright law, as the late Professor Lyman Ray Patterson showed. The law, intended to regulate competitors, is now a tool for controlling consumers.

But alas, the story is not a completely happy one. For in addition to the iMac, I needed a router. At first bought a Belkin router from the Apple site. (By now, I had changed the one-click preferences to ship to my parents, so I was able to buy the Belkin router with one click.) But then seeing that I could get a Belkin wireless router elsewhere (of course, not on the site selling Airports), I tried to cancel the order from Apple. Yet when I went to return the Belkin router, life was not so simple. There was no link in the confirming email, and it took a good routing around on the Apple site till I found a web form to request the canceling of an order (it was too late to call, I discovered after calling). So literally 20 minutes after I placed the order, on Christmas Day, I sent a request to cancel it. Today, five days later, I received an email informing me that it was too late to cancel the order -- which I had discovered, since my Dad called to say the router had arrived. Twenty minutes on hold later, I received a RMA to return the router -- of course, we pay shipping.

I wonder just what the thinking of the Apple Exec who set up this one-click-to-buy, a million-clicks-to-fail-to-cancel system was: "We'll make it really hard for them to cancel an order, and maybe they'll get so frustrated, they just won't cancel it!" Yes, that is brilliant.

Oh well, here's to the Crazy Ones.

The one thing that DC types seem to have learned from the digital age is binary thought. We're ruled by the bin-heads. You're either for us or against us (the war). You're either for us or against us (the copyright war). And more and more, you're either for us or against us (the privacy war). That, I guess, is the nub of what angered me in the latest instance of bin-head "thinking": The RIAA-like wilfullness to take a balanced view and transform it into an extreme. It's bad enough that people hear extremes in balance. It is a special sin to paint balance as an extreme.

In the latest example of Word not keeping its secrets, Joi reports that the California Attorney General is circulating a draft letter condeming p2p sharing -- a letter authored by the MPAA.

I've been begging my wife to let me close down all but one or two of our credit card accounts. The hassle of dealing each month with many different accounts is more than these fingers can handle. My latest victory was to be Chase. She has had a Chase account for ever. But I finally convinced her there was no real benefit to keeping that account open.

So she called Chase and asked that they close the account. Chase was not happy. "What can we do to keep you as a customer," they asked. I was standing next to her when they asked her, so she asked me. I pointed to an advertisement we had just received from AT&T Universal card, promising no fees, zero interest, no payment for a year for balance transfers. She told the Chase representative we'd keep the card open if they gave us the same terms. The representative said she'd have to check, and said she'd call back later. She did. Chase offered the same terms as AT&T, and based upon that offer, we transferred a substantial chunk of airplane ticket debt to Chase. (The worse thing about traveling to speak is carrying the costs of the airplane tickets till reimbursed. At one point last year, I was carrying more receivables in conference expenses than my wife earns in a year.)

I remember thinking when this all happened how amazing it was that such a significant transaction could happen based only upon the word of a voice at the other end of the phone promising she spoke for Chase. How advanced the world had become! I thought for a second to ask that they send the offer in writing, but it seemed so 19th century. And anyway, it was Chase! And they were being so cyber! Who was I to spoil the fun?

This month we received our statement. As promised, zero interest, and zero fees for the transfer. But contrary to the promise, Chase was demanding a minimum monthly payment. When we called to say that this was not what was agreed to, we were instantly shipped back to the 19th century: "Do you have the offer in writing" the agent at the other end asked?

No, we didn't. And after our payment for the full balance transfer is cleared, neither will we have a Chase card anymore either.

"Add digital rights management and the story becomes more complex."

Last month I wrote about the DRM-encumbered Constitution. Note, this is not really Microsoft's doing -- they just build the bombs, others choose to use them. But a bunch have sent links to free Constitutions. Here's one for the iPod created by the American Constitution Society.

I've never really bought the conspiracy story surrounding the Diebold voting machine stuff. I've been happy that the issue has been raised (and even happier that the battle about copyright that Diebold's effort at censoring criticism created also created the Free Culture movement at Swarthmore, and now spreading).

But if this story is true, I will have to rethink my view. As reported at Blackboxvoting:

By entering a 2-digit code in a hidden location, a second set of votes is created. This set of votes can be changed, so that it no longer matches the correct votes. The voting system will then read the totals from the bogus vote set. It takes only seconds to change the votes, and to date not a single location in the U.S. has implemented security measures to fully mitigate the risks.

Is this really true?

I continue to be astonished at how far PFF has moved from its roots. The group has issued a press release demanding Supreme Court review of Grokster, buttressed with supporting blog entries by Bill Adkinson and a "grid" by Solveig Singleton with a six (yes, count them, six, with some including italics) factor test that courts are to apply to decide whether a technology is legal or not.

I can well understand New Dealers racing to craft multifactored tests to regulate innovation. But I thought the whole point of the conservative (economic) movement was to teach us how harmful such regulation was to innovation and growth. Any test that cannot be applied on summary judgment guarantees that federal judges will be forced into a complex balancing to decide which innovation should be allowed. And thus, any industry threatened with competition can then use the courts to extort from these new competitors payment before they are permitted to compete. That is precisely what Valenti says the VCR case was about. He didn't want to stop the VCR, he tell us. He wanted only to force VCR manufacturers to pay for the right to sell consumers VCRs.

Courts, and lawyers, have ruled Silicon Valley long enough. The great hope of the Grokster opinion was that it would return us to the time when entrepreneurs could invent without seeking a permission slip from a federal court (to borrow from the President) . It is simply bizarre to see PFF now call for a return to the days of industrial policy regulated by federal judges. Especially bizarre when you consider how taxing this policy will be to many of the "supporters" of PFF. Many (e.g., Apple, Microsoft, Intel), but alas not all (EMI, Vivendi, BMG). Thus the danger of putting principle up for bid.

So though I have spent over $60 for wireless service this month, I've had no wireless phone. And indeed, if this is Audiovox's policy, it is a really good reason not to rely upon that company. Unless of course, your cell phone is just a toy which you don't really need, and you don't mind spending scores of dollars for service that you cannot use.

But thirteenth in broadband adoption. The amazing non-issue of this campaign.

In 1991, according to The Patent Wars by Fred Warshofsky, Bill Gates said this about software patents:

If people had understood how patents would be granted when most of today�s ideas were invented and had taken out patents, the industry would be at a complete standstill today. The solution . . . is patent exchanges . . . and patenting as much as we can. . . . A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high: Established companies have an interest in excluding future competitors.

Regarding Mr. Orlowski's breathless rant about Doonesbury and Creative Commons: as the Surburban Limbo evinces (thanks, Staci!), the plot-line is actually two years old. While you'd have to be a bit clueless to believe that Thudpucker is actually speaking CC-speak, it would be quite amazing to think that he was speaking CC-speak in January, 2003. Sure, CC had been around for six weeks. But even Mr. Trudeau is not following events that closely.

Another mistake, Mr. Orlowski. Will you correct this one?

An insanely poor editorial by the NYTimes about Grokster.

So there's a view about the file-sharing debate held by most people who don't know anything about the debate. It is a view the recording industry likes most people to hold. It is a view far from anything anyone interesting is saying.

The view - call it the uninformed stereotype (US) view - goes something like this: that there are just two sides to this debate, those who favor "piracy" and those who don't. Supporters of Grokster are people who favor piracy, and who are against artists.

On Thursday, at the NYPL, I had the extraordinarily pleasure of being on stage with Jeff Tweedy and Steven Johnson, for a discussion titled "Who Owns Culture?" The evening started with 15 minutes of me and my "powerpoint" (actually, Keynote), and then a 50 minute discussion with Tweedy and me, moderated by Johnson. There was then time for questions from the audience.

It was an extraordinary evening. I had the chance before to talk to Tweedy, so I wasn't surprised. But he was extraordinary � funny, subtle, smart about the issues, and deeply passionate. Suffice it that neither he nor I (as is obvious to anyone on this page) subscribe to, or fit, within the US view. I explicitly denounced "piracy"; Tweedy -- in context -- said nothing to support the view that people should infringe the rights of other artists.

David Carr of the New York Times was at the event. He wrote a review. Everyone I've spoken to loved the piece. I think they loved it because it was a piece printed in the Times, and we're a culture that loves attention more than accuracy.

The review says nothing inaccurate about me, or the views I expressed. But, imho, it is filled with quotes from Tweedy, taken out of context, to support the US view. Nothing in the article suggests anything was said at all contrary to the US view. One reading the piece would think, there they go again, those supporters of theft, and haters of artists.

I'm not sure why there needs to be a NYTimes, if its role is simply to reinforce what people already think, especially with pieces like this. God forbid the Nation's paper of record should reflect something more subtle or complex than the crudest view of an important debate.

I screwed up an update on the last entry, and seem to have lost the comments, which I hadn't read after the first few. I apologize, and will see if there's a way to recover.

Ever since I interviewed Dave about blogs for my book, Free Culture, I've been thinking a lot about his idea of "amateur journalists." It is a powerful concept, which rewards careful thought. To see its value, we must remember the original meaning of "amateur," meaning one who does something for the love of it alone. And when we think of journalism that is regulated by those ideals, it is easy to see why such journalism nicely complements commerical journalism. As he said to me,

"An amateur journalist simply doesn't have a conflict of interest, or the conflict of interest is so easily disclosed that you know you can sort of get it out of the way."

It is because I found Dave's view so compelling that I've been worried for sometime about the emergence of advertising in blog space. I'm not against it. I just worry about how it might put pressure on the "doesn't have a conflict of interest" norm. If the virtue of the amateur is to seek the truth, that virtue could be in tension with the desire to earn more ad revenue. The simplest way to get linkbacks is to say the most absurd things imaginable.

But the more I've talked about this with observers and friends, the more I think the real fear is not bloggers tempted by ad revenues. It is instead the emergence of the equivalent of tabloids in blog-space: commercial entities whose sole purpose is to generate ad revenue, who do that by being as ridiculous and extreme as possible.

The danger here is that the conflict has returned. Just as the British tabloids care little about the truth in their path to selling papers, commercial blog-loids care little about the truth in trying to attract eyeballs. And it is here that the cycle turn vicious: for the amateur space feeds the professional troll by careful and repeated efforts to show that claims made are false or outrageous. If you're paid by the click, who cares why people click.

This creates a dilemma for open and honest disagreement about the facts. For here there is a conflict in interest: the interest of the amateur journalist is not the interest of the professional troll. Yet the only way the amateur can do his job -- by quoting and criticizing -- is to feed the troll.

We either need a way to cite that doesn't reward bad behavior. (Copyright law restricts that (Google, for example, would be really angry if you started linking to caches rather than original locations).) Or we need a way to know when to ignore.

In either case, imho, it would be useful to think more about this conflict in interest, if the nature of the amateur space is not to be displaced by something different.

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.

Google has been sued by the Authors Guild, and a number of individual authors. This follows similar threats hinted at by the American Association of Publishers. The authors and the publishers consider Google's latest fantastic idea, Google Print -- a project to Google-ize 20,000,000 books -- to be "massive copyright infringement." They have asked a federal court to shut Google Print down.

It is 1976 all over again. Then, like now, content owners turned to the courts to stop an extraordinary new technology. Then, like now, copyright is the weapon of choice. But then, like now, the content owners of course don't really want the court to stop the new technology. Then, like now, they simply want to be paid for the innovations of someone else. Then, like now, the content owners ought to lose.

This is the best case to illustrate the story I told at the start of Free Culture. Property law since time immemorial had held that your land reached from the ground to the heavens. Then airplanes were invented -- a technology oblivious to this ancient law. A couple of farmers sued to enforce their ancient rights -- insisting airplanes can't fly over land without their permission. And thus the Supreme Court had to decide whether this ancient law -- much older than the law of copyright -- should prevail over this new technology.

The Supreme Court's answer was perfectly clear: Absolutely not. "Common sense revolts at the idea," Justice Douglas wrote. And with that sentence, hundreds of years of property law was gone, and the world was a much wealthier place.

So too should common sense revolt at the claims of this law suit. I'm an academic, so this is a bit biased, but: Google Print could be the most important contribution to the spread of knowledge since Jefferson dreamed of national libraries. It is an astonishing opportunity to revive our cultural past, and make it accessible. Sure, Google will profit from it. Good for them. But if the law requires Google (or anyone else) to ask permission before they make knowledge available like this, then Google Print can't exist. Given the total mess of copyright records, there is absolutely no way to enable this sort of access to our past while asking permission of authors up front. Or at least, even if Google could afford that cost, no one else could.

Google's use is fair use. It would be in any case, but the total disaster of a property system that the Copyright Office has produced reinforces the conclusion that Google's use is fair use. And for all those people who devoted years of their life to defend the right to p2p file-sharing -- here's your chance to show what this battle is really about:

Google wants to do nothing more to 20,000,000 books than it does to the Internet: it wants to index them, and it offers anyone in the index the right to opt out. If it is illegal to do that with 20,000,000 books, then why is it legal to do it with the Internet? The "authors'" claims, if true, mean Google itself is illegal. Common sense, or better, commons sense, revolts at the idea. And so too should you.

So I was on the "Docklands Light Railway" in London, reading the ads above the passengers' heads. Here, by far, is my favorite:

Abuse, Assault, Arrest: Our staff are here to help you. Spitting on DLR staff is classified as an assault and is a criminal offence. Saliva Recovery Kits are now held on every train and will be used to identifty offenders against the national DNA database.

From Jennifer Granick, director of the Stanford Center for Internet and Society:

The Stanford Law School Center for Internet and Society is collecting stories about problems with locked cell phones to support our request to the Copyright Office for an exemption to the DMCA anti-circumvention provisions for cell phone unlocking. The original comments filed are here. These will be for the reply comments.

If you have a good story, know someone who does, or are aware of a community of people who might be interested, please send the link to them.

(Thanks, Peter!)

From Henri Poole:

At 8:30am this morning, wearing neon Hazmat gear, 25 techology activists from FSF & EFF swarmed the 2006 Windows Hardware Engineering Conference in Seattle.

Following the lead of the French anti-DRM activists, the new initative, Defective By Design, is signing up activists interested in getting involved in local actions to bring awareness to the crippling effects of DRM on art, literature, music or film, and free software.

So I'm just finishing the page proofs on Code v2. As you recall (pretend if you don't), one theme of Code was that commerce would develop tools to facilitate better regulability of the Net. I take a break to check the email account at the Academy. The Academy is using a hosted Gmail system. A Gmail add tells me about "DidTheyReadIt.com." This service will allow you to determine whether someone read an email you sent them, how long they kept the message open, and from where they read it. It is trivially easy to use (you add their address to the address you're sending, e.g., xxx@xxx.com.didtheyreadit.com), and it adds a bug to the message that tracks exactly how the message is used.

Wow.

You might have seen the article by RFK Jr. in Rolling Stone asking, Was the 2004 Election Stolen? It is a terrifying but powerful piece that makes it hard to believe what we all want to believe about the 2004 election.

Now come three researchers from Princeton to demonstrate how one could hack a Diebold machine and undetectably alter the election results. This is a video of their results:

You can read the full report here.

(Thanks, Ken!)

YouTube has announced:

Sophisticated tools to help content owners identify their content on the site;
(1) Automated audio identification technology to help prevent works previously removed from the site at the request of the copyright owner from reappearing on the site;
(2) The opportunity to authorize and monetize the use of their works within the user-generated content on the site;
(3) Reporting and tracking systems for royalties, etc.

This is going to get very interesting.

TechWorld (a UK publication) has an article about a "leaked" letter from the Initiative for Software Choice (ISC) (apparently MSFT funded) about, as the article puts it, the "potentially dire effects if too much encouragement was given to open source software development."

Nothing weird there. What is weird is, first, that such a letter has to be "leaked" (aren't submissions to the EC a matter of public record?), and, second, the way in which the letter is made available on the TechWorld website. TechWorld gives you a link to the letter. The link states: "You can view the entire letter here." And indeed, the link means what it says. You can ONLY view the letter. The PDF is locked so that it can't be printed.

Is it really the case that copyright law would forbid a letter written to a government agency from being printed on a users computer?

Note, this is a simple restriction to get around (but is that legal?): If you've got access to Acrobat Professional, you can save a version and turn off the password security (apparently without the password, as I did).

(Thanks, Marten!)

So in the comments to my post about the piece in the FT, John Earnhardt, an author on Cisco's (read: the company that will sell the technology to end network neutrality) "High Tech Policy Blog," complains about "the rhetoric [I] have used." In his blog post, titled "How can you tell if a lawyer is lying?" (talk about helpful rhetoric), he writes:

In the FT piece he writes: "Network owners now want to...charg(e) companies different rates to get access to a "premium" internet. YouTube, or blip.tv, would have to pay a special fee for their content to flow efficiently to customers. If they do not pay this special fee, their content would be relegated to the "public" internet a slower and less reliable network. The network owners would begin to pick which content (and, in principle, applications) would flow quickly and which would not." This is sheer fiction and he knows it. The truth of the matter is that YouTube and Google, the companies he holds up at stalwarts of fair play, apple pie, motherhood and whiskers on kittens actually charge companies to get premium placement on their websites. What's this you say? Those who own a website or service are allowed to charge money to allow an advertiser to get top placement on their website? I'm shocked and appalled and will be submitted an op-ed to the FT stating the same. What is the difference of a service provider (in his terminology, a "network owner") of charging a service to get premium placement on their "owned" network? They are not degrading the services of others, but enhancing the service of those who choose to pay for the premium placement.

His second strike is even better:

Here's another anology: We're in the throes of campaign season here in the ol' US of A and television and radio ads play a large role in electing or defeating a candidate. Those candidates who have more money can buy more ads on radio and TV. They can buy them during the most popular shows so that the most amount of voters can see them. If the other candidate has no money and cannot afford to place an ad on television or radio I can only assume that Larry Lessig will offer to pay their way in the name of net neutrality. Why? Because, in his mind, the playing field should be equal for all candidates.

So again, no, whether candidates have money or not is not my concern. They are (in the analogy) at the edge of the network. But let me turn the analogy around. Imagine there are only two television stations in a particular democracy. They both begin to "access tier" -- charging different rates to different political candidates. So Dems get a rate 1/2 the rate charged to the GOP; or major parties get a rate that is 1/3 the rate charged to Independents. Does that begin to trouble you?

Now again, as I said in the blog post about the piece, everything here hangs upon market power. So in a truly competitive market for last mile broadband, I wouldn't care as much (Barbara van Schewick says there's still a reason to care). But in a world of limited competition, the games the networks can play will both stifle innovation at the edge, and reduce the incentive network owners have to increase performance for all.

A bit ago I wrote (here and here) about a difference between true and fake sharing, pointing out that YouTube, rightful darling of the Internet moment, was a fake sharer. I hadn't realized then just how seriously they took this limit: Read here as TechCrunch describes the notice and takedown they received for some code that allows you to save a YouTube video to your machine.

You might wonder how it could be a problem to save a YouTube video to your machine, when it isn't a problem to save a television show to your VCR? Welcome to the terror of the Terms of Service world: Whether or not it is a violation of copyright law (which it isn't, though the lawyers for YouTube seem to assert to the contrary), the view of many is that "fair use" rights can be promised away just as your first born male son can be promised away (wait, except he can't).

Anyway, without risking more red-baiting, let me simply opine: For a company that was built upon the unauthorized spread of other peoples' copyrighted work to threaten legal action against someone simply enabling people to save that work to his machine deserves at least special mention in a book by Alan Dershowitz.

Tom Rubin is a very smart man. I don't think I've disagreed with any copyright opinion of his, until now. The crucial passage (in my view) from his recent speech before the American Publishers, piling on to Google, was as follows:

Rather than delve into this arcane legal issue, what we really should be asking is whether it would be possible for Google to provide its Book Search service in a way that respects copyright. The answer to this question is: of course there is. How am I so sure? Well, because we at Microsoft are doing it. And not just Microsoft. We and others are working on search-driven projects that are proceeding with the express permission and support of copyright owners. And then there's Google's own Publisher Partner program, which makes book content available online only after obtaining the necessary authorization.

Let's first put this quote in some context.

Google's "Book Search service" aims to provide access to three kinds of published works: (1) works in the public domain, (2) works in copyright and in print, and (3) works in copyright but no longer in print. As some of you may recall from the presentation I made a while ago, about 16% of books are in category (1); 9% of books are in category (2), and 75% of books are in category (3).

With respect to categories (1) and (2), Google is "respect[ing] copyright" just as "we at Microsoft are doing it." With respect to category (1), that "respect" means no permission needed. With respect to (2), that means deals with the publishers whose works are made available -- deals which give enhanced access over the default "snippet access."

So that leaves category (3) -- the 75% of works presumptively under copyright, but no longer in print. How do you "respect" copyright with respect to those works?

Well, Microsoft "respects" these copyright holders by not providing any access to their works. Google "respects" these copyright holders by providing "snippet access" -- just enough to see a sentence or two around the words you're searching for, and then links to actually get the book (either at a library, or from a book seller).

This may just be my own vanity, but I suspect that more copyright holders of books no longer in print would like Google's kind of respect over Microsoft's. But in any case, it is not true to say that Google could have provided "its Book Search service" in the way that "we at Microsoft are doing it." If asking first is always required, then because of the insanely inefficient system of property that we call copyright -- inefficient again because the government has designed it so that there's no simple way to know who owns what, the very essence of a property system -- 75% of books could not be within a digital view of our past.

Nathan Weinberg has a piece on WebProNews responding to my response to Tom Rubin's criticism of Google's "respect" for copyright. The piece is (well written and) useful, because it packs in its couple hundred words all the fallacies that haunt this anti-Google debate.

Fallacy one: "When you make a copy of a copyrighted work, you are in essence stealing it, and even when I download music and movies, I never kid myself that what I am doing is legal."

First, Nathan, don't download music and movies without the permission of the copyright owner. Bad, bad, bad.

Second, even if making "a copy of a copyrighted work" is illegal, it is not "in essence stealing it." See the Supreme Court's rejection of this false analogy in footnote 33 of Sony v. Universal.

But third, and most important, not every "copy" violates copyright law. In particular, if a copy is "fair use," then copyright law has not been violated. The question in this case is thus, as always, is the copying for purposes of making snippet access available "fair use." As much as you know that it is wrong to download music without the permission of the copyright owner, I hope you also know that it is right to make copies -- even without the permission of the copyright owner -- when such copies are fair use.

Fallacy two: "While there are many authors who care more about getting their books out there than making money, the vast majority is trying to earn a living. Those authors whose books are out of print, but still in copyright, would love an opportunity to make some money off their older books, but Google's plan involves copying them without permission."

True, most authors would prefer to make more money from their works than they did before. True, Google plans on copying them (for purposes of making snippet access available) without permission. But the implication -- that Google's copying will reduce author's opportunity to make money -- is false. Out of print books are -- by definition -- books the authors are not making money on. Google's Book Search will refer people who discover the out of print book to book sellers. If demand for a currently out of print book grows, then it is more likely than before that the book will go back into print, meaning again, the author can make money. So contrary to the "if Google copies, authors lose" fallacy, if Google enables access, at least some authors will get something they don't have right now -- their out of print book back in print.

Fallacy three: "Even if all the authors want their books in Google, I've always felt that to respect me, you have to show respect, and that means asking me if what you are doing is okay. Don't tell these authors what's best for them, that shows no respect at all."

First, both sides in this debate are effectively "tell[ing] these authors what's best for them." Microsoft and the Publishers are telling the authors that it is best for them that the law ban companies like Google from securing access to snippets of their works. They want a rule that says "ask first" not for permission to distribute copies of their books, but for permission to enable access through a 21st century card catalog. When in the history of man did the law require permission from an author (or publisher) for a work to be included in a card catalog?

Second, the point ignores the central point in this debate: Given the insanely inefficient system of copyright that the government has created, there's no way to identify the current owners of these copyrights (for works out of print). So how, again, are these people to be "asked"?

Fallacy four: "Mr. Lessig, even if you want Google to scan and index your book, even if you want the knowledge in your book spread throughout the earth, wouldn't you want Google, a company that will make money off your book you will never see, to at least ask permission first?"

There are lots of people who make money off of my work without asking me, and it's a good thing too. Look at the bump in Stephen Manes Google rank from his criticism of me. How much money do you think Forbes got in ads from the click-throughs that this article -- calling me an "idiot" and "moron" and other such stuff? Do you think Manes asked me before he tried to profit as he did. (No.) Do you think he should have to ask me? I certainly don't. If the use is "fair use" -- which even Manes article is -- then we should encourage people to make money on it. The more money people can make, the more the economy around spreading ideas can grow.

After my debate last week at CISAC (at Google Video here), The Register published a piece (archived) about the event. I've received a bunch of angry email about what was reported in that piece. The relevant quotes offered in the Register's article, however, are not correct.

First, The Register writes that I said: "I have two lives," he said. "One is in Creative Commons...the other is in litigation against authors."

In fact, I said: "I have two lives in this. One is leading Creative Commons. And the other [is leading] litigation which is , I'm sure, in conflict with the views of many people about copyright." Listen to the clip here: mp3, ogg.

Second, The Register also wrote that I said: "No one at Creative Commons has attacked authors." That's certainly true. No one working at Creative Commons has ever "attacked authors." However true, the quote is not what I said.

In fact, I said: "Nobody who works for Creative Commons has ever attacked collecting rights societies in the way you described." Listen to the clip here: mp3, ogg.

Third, The Register wrote that I said: "I assert that there is no fundamental disagreement between the objectives of the societies and the objectives of Creative Commons." This caused many from the "movement" to complain that in fact there were important conflicts between Creative Commons and Collecting Rights Societies.

In fact, what I said was: "I assert that there is no fundamental disagreement between the objectives of the Collecting Rights Societies, as you've described them and the objectives of what Creative Commons is trying to do." The qualification is important, because Brett Cottle had described compromises that Collecting Rights Societies were making to fit with the digital age. While I don't believe it's accurate that all Collecting Rights Societies have been as progressive as Mr. Cottle suggests, I do believe that if they were, there would be "no fundamental disagreement" between them and our objectives. Listen to the clip here: mp3, ogg.

Fourth, some complained that I had referred to the work of creators who don't intend their creative work to be licensed commercially as "a secondary class of creators." Actually, of you read The Register's piece carefully, you'll see that the first time that quote is used it states "a second class of creators." The second time it appears "second" has morphed into "secondary."

All I meant to do was to distinguish one class of creators -- professionals, who create for money -- from a second class of creators -- those who create for the love of creating, and not for the money. I did not say that these creators were of a second class. Indeed, my whole point was that these creators too deserved "respect." That point is conveyed quite accurately by the International Herald Tribune piece about the same debate.

Finally, The Register wrote something that has led at least one blogger to believe that I am employed by Google. I don't think a charitable interpretation of what The Register wrote could support that reading. But to the extent it does, let me state clearly that I am not employed by Google. Nor do I represent them. The suggestion of a conflict in The Register's piece has, however, led me to craft a disclosure statement that I should have published (ala Dave Weinberger and Ethan Zuckerman and Dana Boyd) long ago. I will post that statement tomorrow.

Engadget reports that "the head honcho of Macmillan Publishers" lifted a couple Google laptops at a recent BookExpo America, and then when he returned them, retorted "hope you enjoyed a taste of your own medicine," and "there wasn't a sign by the computers informing him not to steal them."

So this betrays an astonishing level of ignorance, even for a "head honcho."

Remember (and I did a 30 minute preso here to explain it) Google Books proposed to scan 18,000,000 books. Of those, 16% were in the public domain, and 9% were in copyright, and in print. That means, 75% of the books Google would scan are out of print but presumptively under copyright.

The publishers and Google already have deals for the 9%. And being in the public domain, no one needs a deal for the 16%. So the only thing the publishers might be complaining about is the 75% which are out of print and presumptively under copyright.

With respect to these, Google intends to index the books, and make them searchable. If a hit comes through the search engine, Google offers snippets of the text relevant to the search. The page includes links to libraries where the book might be borrowed; it includes links to book stores where the book might be purchased. And, I take it, if the "publishers" were to choose to publish the book again, it would also include a link to that publisher.

Finally, any author who wants to be removed from this index can be removed. As with Google on the net, anyone can opt out.

So vis-a-viz a computer sitting at a demonstration booth at a conference, is the "head honcho's" action like Google's?

Obviously not. And let us count the ways:

(1) Any such list must begin with the point obvious to all since the beginning of something called "IP," but set to poetry by Jefferson. Read the full quote at the Connexions project. But the relevant line marking the difference here is this: "Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it." If the "head honcho" has Google's computers, Google can't use them. But if Google indexes out of print books, that does not -- in the least -- reduce the access anyone else has to the same property.

(2) A computer sitting at a marked booth at a conference is like the 9% in print, and under copyright. With respect to those, Google has deals with the publishers. So the "head honcho's" action is more like offering in print, in copyright books for free, and in total -- something Google is emphatically not doing.

(3) If the computer was not sitting at a market booth, but instead was in a trash dump (like, for example, the publishers out of print book list), or on a field, lost to everyone, then that fits the category of property that Google is dealing with. But again, Google doesn't take possession of the property in any way that interefers with anyone else taking possession of the property. The publisher, for example, is perfectly free to decide to publish the book again. Instead, in this case, what Google does is more like posting an advertisement -- "lost computer, here it is, is it yours?"

(4) Or again, imagine the computer was left after the conference. No easy way to identify who the owner was. No number to call. In that case, what would the "head honcho's," or anyone's rights be? Well depending upon local law, the basic rule is finders keepers, loser weepers. There might be an obligation to advertise. There might be an obligation to turn the property over to some entity that holds it for some period of time. But after that time, the property would go to the "head honcho" -- totally free of any obligation to Google. Compare copyright law: where the property can be lost for almost a century, and no one (according to the publishers at least) has any right to do anything with it. Once an orphan, the law of copyright says, you must be an orphan. No one is permitted to even help advertise your status through a technique like search engine.

(5) Or again, imagine the computer was a bank account in New York. And imagine, the bank lost track of the owner of the account. After 5 years, the money is forfeited to the state. Compare copyright: in New York state, a sound recording could be 100 years old, but no one has any freedom with respect to that sound recording unless the copyright owner can be discovered.

The list could go on, but the obvious point is this: Physical property and the intangible property we call copyright are different. Jefferson pointed to one difference. But the really crucial difference that I've been trying to get people to see is that physical property systems have a host of techniques to assure that the property system is efficient. Copyright does not. Copyright is the least efficient property system constructed by government -- which is saying a lot. And rather than continue sophomoric debates about who is "stealing" what, it's about time that policymakers -- and industry leaders -- took responsibility for the inefficiency that copyright is.

Film schools are in the business of creating filmmakers -- artists with film. Their job is to teach both the skill and the ethic of an artist. The skill in making film; the ethic of creating art.

So what lesson do film schools teach their students about copyright? Unfortunately, in some at least, the most striking lesson is on how best to become an artistic-sharecropper.

That at least seems to be the lesson being taught at the University of Hawai'i's Academy of Creative Media. All film students must sign a copyright agreement that either renders their work "work for hire" or assigns completely all copyright in their creative work to the ACM. (After two years, the student gets a nonexclusive license to the work, but the copyright remains with ACM). ACM becomes the black hole for these rights. What they do with them is not clear.

But what is clear is the lesson ACM is teaching: That you, the creator, deserve no creative- or copy-right for your creativity. That right should be owned by the man. And while (at least so long as you're good) the man might grant you a nonexclusive license to your creativity, don't even think about the idea that what you create is yours to control. Copyright at ACM at least is not a right grant to "authors," it is a right taken from the authors by the University.

Is there anything illegal in this? No. Is there anything immoral in this? Probably not. But I should think that at least some film students will decide where they want to learn how to be film makers by thinking a bit about the values of the school they attend. IMHO, these are precisely the opposite of the values we ought to be teaching creators.

As I think through this issue of corruption, I am brought back again and again to the differences in an institution's sense that the rules should be followed. For example, the great thing about the Supreme Court -- an institution I would criticize on substantive grounds in lots of contexts -- is that the culture of the place is that people follow the rules. Perhaps clerks do more of the writing than one would want, but the institution is basically doing what the framers imagined it would be doing. And it does so with everyone in that institution following the rules. Compared, for example, with the FCC, where the staff apparently thinks following the rules is just an option, not a requirement, in my experience at the Court, no clerk would ever have had any contact with a party to a case, or discuss the proceedings of the court during the time it is considering a case. The difference, again, as I argue in Corruption vAlpha, is one of culture.

So then this story about the Texas legislature is just perfect in making the same point. The point is not really about the significance of the act. It is about the culture it reveals. There is a plain rule the prohibits what you will see in this video. The Texas legislature is a culture where the rules apparently don't matter.

Thanks to Laurie for linking me to this via BlacklistedNews. Also directly related: Elizabeth Williamson's piece in the Post: Getting Around Rules on Lobbying. Thanks to friends who sent the link to make sure I saw this.

So as readers of this site know, I represent Robert Greenwald (pro bono) in a some fair use matters. My first work was on his film Outfoxed. Robert has been continuing the campaign against Fox. His latest is a very clever set of attacks on the "indecency" of Fox News. (The purpose is to push the FCC to unbundle cable channels). Watch the video below and you'll see the point.

Ok, so here is where things get weird. All of this content is content broadcast on Fox television. All of it thus passes the censors at the FCC. Yet stories about Robert's latest are now banned on DIGG. And YouTube requires you verify you're over 18 to see the clip. (At 9pm, the story is #1 on Reddit, on the other hand.)

So it's ok to broadcast this content to kids for the purpose of driving ratings and ad revenue, but banned for purposes of criticizing the (yet again) hypocritical Fox network. The conspiracy theories abound here. My guess is that some pro-free speech entities (DIGG, YouTube) are just not thinking.

UPDATE: DIGG did the right thing. Read (and digg) Kevin's correction of their mistake. Bravo.

So the wires are a twitter with the story of Chief Judge Alex Kozinski's "web site" which, from reading the stories, you'd think was filled with porn (and worse), revealing a dark soul who, some experts in legal ethics suggest, shouldn't be presiding at an obscenity trial. That, you think, is what I mean by "the Kozinski mess."

It's not. What I mean by "the Kozinski mess" is the total inability of the media -- including we, the media, bloggers -- to get the basic facts right, and keep the reality in perspective. The real story here is how easily we let such a baseless smear travel - and our need is for a better developed immunity (in the sense of immunity from a virus) from this sort of garbage.

Here are the facts as I've been able to tell: For at least a month, a disgruntled litigant, angry at Judge Kozinski (and the Ninth Circuit) has been talking to the media to try to smear Kozinski. Kozinski had sent a link to a file (unrelated to the stuff being reported about) that was stored on a file server maintained by Kozinski's son, Yale. From that link (and a mistake in how the server was configured), it was possible to determine the directory structure for the server. From that directory structure, it was possible to see likely interesting places to peer. The disgruntled sort did that, and shopped some of what he found to the news sources that are now spreading it.

Cyberspace is weird and obscure to many people. So let's translate all this a bit: Imagine the Kozinski's have a den in their house. In the den is a bunch of stuff deposited by anyone in the family -- pictures, books, videos, whatever. And imagine the den has a window, with a lock. But imagine finally the lock is badly installed, so anyone with 30 seconds of jiggling could open the window, climb into the den, and see what the judge keeps in his house. Now imagine finally some disgruntled litigant jiggers the lock, climbs into the window, and starts going through the family's stuff. He finds some stuff that he knows the local puritans won't like. He takes it, and then starts shopping it around to newspapers and the like: "Hey look," he says, "look at the sort of stuff the judge keeps in his house."

I take it anyone would agree that it would outrageous for someone to publish the stuff this disgruntled sort produced. Obviously, within limits: if there were illegal material (child porn, for example), we'd likely ignore the trespass and focus on the crime. But if it is not illegal material, we'd all, I take it, say that the outrage is the trespass, and the idea that anyone would be burdened to defend whatever someone found in one's house.

Because this is in many ways the essence of privacy. Not the right to commit a crime (though sometimes it has that effect). But the right not to have to defend yourself about stuff you keep private. If the trespasser found a Playboy on the table in the den, the proper response is not to publish an article reporting this fact, and then shift the burden to the home owner to defend the presence of the Playboy (a legal publication, harmless in the eyes of some, scandalous in the eyes of others). The proper response is to give the private party the benefit of privacy: which is, here at least, the right not to have to explain.

This analogy, I submit, fits perfectly the alleged scandal around Kozinski. His son set up a server to make it easy for friends and family to share stuff -- family pictures, documents he wanted to share, videos, etc. Nothing alleged to have been on this server violates any law. (There's some ridiculous claim about "bestiality." But the video is not bestiality. It lives today on YouTube -- a funny (to some) short of a man defecating in a field, and then being chased by a donkey. If there was malicious intent in this video, it was the donkey's. And in any case, nothing sexual is shown in that video at all.) No one can know who uploaded what, or for whom. The site was not "on the web" in the sense of a site open and inviting anyone to come in. It had a robots.txt file to indicate its contents were not to be indexed. That someone got in is testimony to the fact that security -- everywhere -- is imperfect. But this was a private file server, like a private room, hacked by a litigant with a vendetta. Decent people -- and publications -- should say shame on the person violating the privacy here, and not feed the violation by forcing a judge to defend his humor to a nosy world.

When it comes to government invasions of our privacy, we are (and rightly) a privacy obsessed people. We need to extend some of that obsession to the increasingly common violations by private people against other private people. There is nothing for Chief Judge Kozinski to defend because he has violated no law, and we live in a free society (or so he thought when he immigrated from Romania). A free society should feed the right to be left alone, including the right not to have to defend publicly private choices and taste, by learning not to feed the privacy trolls.

Against the Orphan Works Act of 2008. (Obviously I'm not keen about the "eternity" part in the petition, but one doesn't need to support the ultimate ends of an ally to find an ally.) (See also my oped about a month ago.) Almost a decade since the Sonny Bono Copyright Term Extension Act, and we've still learned nothing.

I've gotten lots of email and comments about my criticism of privacy-revealing behavior related to Chief Judge Kozinski. After reading that criticism, I am more convinced.

1. Privacy is not determined by technology: The core point that's important to me here is to reject the sense many have that "privacy" is that stuff you can't get access to technically. So something's private if encrypted, but if there's a way for me to hack into it, it is public. I reject that sense of the norm of privacy. Think of a party line telephone. Anyone on the party line had a simple ability to pick up the telephone and listen to any conversation going on. But if you did that, others would rightly call you a louse. You had invaded the privacy of the people having a telephone call, even though it was technically trivial to listen to that private conversation.
   
2. This FTP server was improperly configured (given its use): Though you could access this (or practically any) FTP site through the web, this was not a web site. It was a file server. Just like the server that contains the files for this blog, that means it enables people to get access to files. But it also enables the maintainer to control who gets access to what files. So with this blog, if you download a file I've linked from the blog, you can easily figure out what directory that file is located in. But you can't (without serious hacking) see the other files in that directory, or see the directory structure. That's because those friends who have helped me set this up have disabled that ability. Yale Kozinski apparently didn't with the Kozinski server. So again, as with the party line, it was trivial to see all the files in any particular directory, or the directory structure. But that doesn't make peddling the list of stuff kept on the server to news organizations not a violation of privacy.
   
3. Metaphors are metaphors.: My original metaphor here was about someone jiggering a lock and breaking in. That was a metaphor. As with any metaphor, there are an infinite number of ways the metaphor is like the particular example, and an infinite number of ways it is unlike the particular example. The parts I found analogous were these: like someone breaking in, the litigant went where he wasn't invited; like someone breaking in, the litigant found stuff in a place anyone could have placed it; like the den where anyone could place stuff, you can't know who is responsible for whatever is there; like the den in a private house, privacy means not having to defend or explain what is in your den. As I explained in the comments, I didn't mean the metaphor to suggest the litigant was a criminal for trespassing. As many of you know, I am not a believer in the trespass theory of cyberspace. But just because you're not a criminal doesn't mean you're not a chump.
   
4. "Hacker": I called the litigant a "hacker." That was the nicest thing I said about him. I do not subscribe to the view that "hacker" predicates only of criminals. RMS is famous for his greeting "Happy hacking." It means nothing more than someone who explores. But again, that it is a good thing to explore does not mean it is a good thing to wander into someone's den.
   
5. The irrelevance of the MP3s.: Some suggest my view would have been different had I known the judge had MP3s on his site. Those sorts are wrong. Indeed, I did know he had a few MP3s on his site -- the first reporter calling me about this told me that. That fact does not change anything in the analysis. As the Fed Circuit has indicated in an unrelated case, an unindexed FTP site is not a "public" site. The fact that you have copyrighted MP3s on a nonprivate site does not make you a copyright infringer. Kozinski was not offering this content to the world. The fact that some Russian MP3 sites found it doesn't change Kozinski's responsibility. Obviously while I don't support the practice of wrongful distribution of copyrighted material, I certainly do believe people have the right to space-shift their material, and even share it with a friend ("Hey, listen to this...") That's all that's happening here.
   
6. Your privacy should not depend upon your political party.: This also disappoints me here -- the schadenfreude. Here's a Republican judge getting in trouble for racy content with questionable copyright status. So we (or some of us) liberals get all outraged and angry at his bad behavior. But had the politics been different, would the reaction have been the same? Privacy, in my view, is more important than this. A Republican judge deserves his privacy as much as the rest of us.
   

I'll add to this as I think of it. Now I'm late to taking my kid to see Alcatraz.

A reaction to McCain's recently announced technology policy. (Stupidly unclear in the video: the initial graph is U.S.'s global ranking in broadband penetration -- so starting high (#5) in 2000, and declining to #22 by 2008. The rankings are based on OECD data.)

There's also a version at YouTube (but please watch in "high quality").

(I resisted the cheap shot "[sic]" at "and free to chose among broadband service providers." Will someone please get them to fix this?)

[Update: Here's a slightly edited transcript of the video (which steals Michael McDaniel's brilliant title)

A tongue-in-cheek reply to my addition to GOP.com's BarackBook.

Mark Dery has a nice piece in PRINT magazine against the Orphan Works Bill.

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).

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.

This is a democracy. We win when we persuade people of our ideals. I believe strongly that Proposition 8 is against our ideals. I have so argued. But we have failed to convince the other members of this democracy.

We need to try again. Let us launch, now, a new petition movement. Let us spend a year talking to people who disagree with us. Let us win this battle by persuading the other side. I volunteer to do whatever would help, including traveling to every church or community in this state to make the case for equality. But please, let's not try to win this battle by summoning the Supremes. Even if it is right that this Amendment is contrary to the best interpretation of Equal Protection, let us bring the ideals of Equal Protection to life, by getting people to support them.

Chris' post says:

For Obama media to be offered under a CC license (with the licensed embedded in the media itself) would signal his seriousness about embracing openness, transparency and the nature of discourse on the web. It would also signify a shift towards the type of collaboration typified by Web 2.0 social sites, enabling a modern dialectic relationship between the citizenry and its government.

Note the "seriousness" of Obama's commitment here might well be wondered about. Note the tag line on "change.gov": "CONTENT COPYRIGHT © 2008. ALL RIGHTS RESERVED." Talk about "change" -- an effectively governmental website claiming "all rights reserved."

This story is absurd. The message here is that Governor Rendell somehow screwed up because he said something not intended for broadcast near an open mic. But wait a minute: Who did the wrong here? It is plain from the context that Rendell did not intend his comments for public consumption. Yet intentionally or not, ever-more-invasive technologies captured what he said. So why isn't the outrageous behavior here broadcasting what he plainly intended to be a private conversation, rather than, as this commentator makes it seem, the fact that he was having a private conversation at the mic?

Or again: To be sure, Rendell would be wise to remember that there are a million privacy invading technologies surrounding us, and that he, like a citizen in the former Soviet Republic, needs to make sure that whatever he says isn't been snooped. But whether Rendell was wise or not (and I certainly have criticized him for not being wise), why isn't the outrageous behavior taking what he plainly didn't intend to be public and broadcasting it on a world-wide network?

Just because you can see, doesn't mean you should look. And just because you looked, doesn't mean you should broadcast what you saw to the whole world. I know a little titillation is good for ratings; I hadn't known CNN had begun to stoop to such lows.

These bailouts are an awful idea -- the worst of K St. capitalism (== kapitalism) inviting an insanely bad future for the industries affected. If there's one thing worse than Detroit managed by the managers who have been driving the American auto industry into the ground for the past three decades, it is Detroit managed by politicians.

I'm not against all bailouts. I think it was appropriate to save the airline industry after 9/11, for example: That was an unexpected shock that produced a failure not directly related to the bad management of the airlines.

But these bailouts are not that. Both the auto industry and the banking industry are insanely inefficient. They have been for decades. And rather than being saved from a shock, both need a significant shock to management to radically change how they do business.

Perhaps the shock to banking would be too great just now. I'm willing to be persuaded that intervention is necessary there. But the more I read about the auto industry, the less I am convinced.

People speak about this as if not bailing out Detroit means automobile production in America ends. That's not what failing to bailout Detroit means. Not intervening now would mean these automakers would enter bankruptcy. And bankruptcy means the assets of these dinosaurs get reorganized: Someone else buys these companies, at a price the market sets, and runs them profitably, because of the price the market set.

Obviously, that change would not be painless. And I'm all for minimizing the pain where the pain is doing no good -- with workers, or others depending upon these industries. But I'm against interventions designed to minimize the pain where the pain would do good -- by radically changing how that industry is managed. The whole justification for insanely high executive compensation is, in part, so they can weather such storms. I don't see why the government should be in the business of building safety nets for the (relatively) well off.

"But what if foreign car companies buy American car companies?"

So what. I just don't get this fear. We live in a global economy. If you want to own Toyota, buy Toyota stock. In the vast majority of cases (meaning there are exceptions I'd be willing to consider), the place of incorporation of a company should mean squat little to these sorts of issues. Or better, the ability of the company to build and manage production should matter much more.

My site was hacked by evil gambling spammers. I removed the code Google pointed to, and informed Google. I'm still invisible.

I got off the plane from Boston to find my inbox filled with anger about an article in the Wall Street Journal. To those who were angry, I hope you will direct any anger at the Wall Street Journal after you read what follows.

The article is an indirect effort to gin up a drama about a drama about an alleged shift in Obama's policies about network neutrality. What's the evidence for the shift? That Google allegedly is negotiating for faster service on some network pipes. And that "prominent Internet scholars, some of whom have advised President-elect Barack Obama on technology issues, have softened their views on the subject."

Who are these "Internet scholars"? Me. And of course, because I have "softened" my views about network neutrality, and because I advised the Obama campaign about technology issues during the primary, it follows (and obviously so) that Obama too must be going soft on network neutrality.

I don't know what Google is doing, though if they are trying to negotiate exclusive deals for privileged access, that shows exactly why we need network neutrality regulation. (Though note, the article doesn't say the deal Google was striking was exclusive).

And I've not seen anything during the Obama campaign or from the transition to indicate it has shifted its view about network neutrality at all.

But I do know something about my own views, and what the Journal has done here is really extraordinary.

It is true, as the Journal reports, that I have stated that network providers should be free to charge different rates for different service -- "so long," the Journal quotes, "as the faster service at a higher price is available to anyone willing to pay it."

But the whole punch of the story comes from the suggestion that my position is something new. As the Journal states,

Lawrence Lessig, an Internet law professor at Stanford University and an influential proponent of network neutrality, recently shifted gears by saying at a conference that content providers should be able to pay for faster service.

Stanford's Mr. Lessig, for one, has softened his opposition to variable service tiers.

Missing from the article, however, is the evidence that my view is a "shift" or "soften[ing]" of earlier views. That's because there isn't any such evidence. My view is the view I have always had -- whether or not it is the view of others in this debate.

For example, in April, 2008, I testified before the Senate Commerce Committee. This is what I said:

As I testified in 2006, in my view that minimal strategy right now marries the basic principles of “Internet Freedom” first outlined by Chairman Michael Powell, and modified more recently by the FCC, to one additional requirement — a ban on discriminatory access tiering. While broadband providers should be free, in my view, to price consumer access to the Internet differently — setting a higher price, for example, for faster or greater access — they should not be free to apply discriminatory surcharges to those who make content or applications available on the Internet. As I testified, in my view, such “access tiering” risks creating a strong incentive among Internet providers to favor some companies over others; that incentive in turn tends to support business models that exploit scarcity rather than abundance. If Google, for example, knew it could buy a kind of access for its video content that iFilm couldn’t, then it could exploit its advantage to create an even greater disadvantage for its competitors; network providers in turn could deliver on that disadvantage only if the non-privileged service was inferior to the privileged service.

That's the same thing I said to the FCC in its hearing at Stanford. You can hear what I said beginning at minute 18:20 here. There I distinguish between "zero price regulations" (such as Markey's bill (which I say I am against)) and what I called "zero discriminatory surcharge rules" (which I say I am for). The zero discriminatory surcharge rules are just that -- rules against discriminatory surcharges -- charging Google something different from what a network charges iFilm. The regulation I call for is a "MFN" requirement -- that everyone has the right to the rates of the most favored nation.

This is precisely the position that the Journal breathlessly attributes to me today. It represents no change -- no "softening" no "shift" in my views.

Now no doubt my position might be wrong. Some friends in the network neutrality movement as well as some scholars believe it is wrong -- that it doesn't go far enough. But the suggestion that the position is "recent" is baseless. If I'm wrong, I've always been wrong.

Fred Benenson's got a nice piece about the WSJ piece. The most depressing part of this whole cycle was the news that the WSJ was sticking by the story.

On what basis, precisely? The charge that Obama was shifting policy was, and is, completely baseless. The charge that I had "shifted" my position was, and is, completely unsupported (and false). And the charge that Google was violating network neutrality principles has been shown (concisely by David Isenberg, one of the originals in this debate) to be just wrong -- no one who understands what "network neutrality" (or what we used to call this before it was smartly marketed, "end-to-end") is could believe that edge caching services, living in a competitive market, could raise NN concerns.

So they're sticking by a story that's baseless, unsupported and wrong. Sounds like we know where the Bushies have gone to work now that they've left the White House.

Update: So I've just had an email exchange with Christopher Rhodes, one of the authors of the piece. What surprised me most about the piece was that he was such a careful interviewer when we spoke, but that we didn't really speak about the issue they charged me with -- shifting -- and I was surprised he didn't ask or followup on that. Turns out he tried, writing to my assistant, but that I didn't speak with him. My assistant didn't know the context of our conversation, so her translation of the question didn't flag it. My apologies to Rhodes. Had we connected, the story would have been different. The mistake in not connecting was mine, no doubt. And the mistake convinces me that at least with respect to me, the story is a misunderstanding (and not, as suggested, bad faith). Important lesson for me, no doubt. But for others: Please send emails for me to me. I read and respond to every email I get (save the spam-ish sorts). And while I can be behind, if you don't get a response, I didn't get it.

Among the less discussed but insanely important issues Obama needs his CTO to think through -- how to do security consistent with our (now restored) values. And on the must read list: The Future of the Internet and How to Stop It.

Amazon has caved into demands from the Authors Guild that it disable the ability of the Kindle to read a book aloud. This is very bad news.

We had this battle before. In 2001, Adobe released e-book technology that gave rights holders (including publishers of public domain books) the ability to control whether the Adobe e-book reader read the book aloud. The story got famous when it was shown that one of its public domain works -- Alice's Adventures in Wonderland -- was marked to forbid the book to be read aloud. (Here's a piece I wrote about this in 2001).

Now the issue is back. The Authors Guild has objected because Amazon's Kindle 2 has a function built in that enables the book to be read aloud. So when, for example, you're commuting, you can plug your Kindle 2 into your MP3 jack and have the book read aloud.

Amazon rightly argued that this did not violate any of the exclusive rights granted by copyright law to the copyright owners. In that, Amazon is exactly right. But nonetheless, it will now enable publishers to decide whether the Kindle books they sell will permit the book to be read aloud. And of course, that includes public domain books.

So here we go again -- How long till we can buy Alice's Adventures in Wonderland and be told that this book "cannot be read aloud"?

But the bigger trend here is much more troubling: Innovative technology company (Amazon (Kindle 2), Google (Google Books)) releases new innovative way to access or use content; so-called "representatives" of rights owners, Corleone-like, baselessly insist on a cut; innovative technology company settles with baseless demanders, and we're all arguably worse off.

We're worse off with the Kindle because if the right get set by the industry that publishers get to control a right which Congress hasn't given them -- the right to control whether I can read my book to my kid, or my Kindle can read a book to me -- users and innovators have less freedom. And we may be worse off with Google Books, because (in ways not clear when the settlement was first reported) the consequence of the class action mechanism may well disable users and innovators from doing what fair use plainly entitled Google to do.

The Huffington Post is running a piece about H.R. 801 (the "Fair Copyright in Research Works Act"), the latest version of John Conyers' awful idea. The law would forbid entities like the NIH from requiring that recipients of government grants make the product of their research openly accessible. (The current practice requires articles be freely accessible after 12 months.) Instead, Conyers' proposal would require that after the American taxpayer has paid for the research, the American taxpayer must pay publishers to get access to the product of the research.

The first important word to emphasize in the last sentence is "publishers." For unlike the ordinary market for creative work, here, the author isn't paid for his work through the copyright system. It is the government (indirectly) paying for the research that the author (a scientist) creates. Scientists write articles as part of their job; other scientists peer-review those articles (usually for free); and journals then publish those articles without paying the author anything. Those journals, however, then charge libraries across the world an increasingly high rate to get access to the research in those journals. As the industry has become more concentrated, those rates have skyrocketed -- rising much faster than inflation.

The "open access movement" was born to create an alternative to this. Even if restrictive copyright was a necessary evil in the days of dead-tree-based publishing, it was still an evil. High costs restrict access. The business model of the scientist is to spread his or her knowledge as widely as possible. Open access journals, such as, for example, those created by the Public Library of Science, have adopted a different publishing model, to guarantee that all all research is freely accessible online (under the freest Creative Commons license) immediately, to anyone around the world. This guarantee of access, however, is not purchased by any compromise in academic standards. There is still a peer-review process. There is still even a paper-based publication.

Pushed by scientists everywhere, the NIH and other government agencies were increasingly exploring this obviously better model for spreading knowledge. Proprietary publishers, however, didn't like it. And so rather than competing in the traditional way, they've adopted the increasingly Washington way of competition -- they've gone to Congress to get a law to ban the business model they don't like. If H.R. 801 is passed, the government can't even experiment with supporting publishing models that assure that the people who have paid for the research can actually access it. Instead, if Conyers has his way, we'll pay for the research twice.

The insanity in this proposal is brilliantly described by Jamie Boyle in this piece in the FT. But after you read his peace, you'll be even more puzzled by this. For what possible reason could Conyers have for supporting a bill that 33 Nobel Prize Winners, and the current and former heads of the NIH say will actually hurt scientific research in America? More pointedly, what possible reason would a man from a district that insists on the government "Buying American" have for supporting a bill that basically subsidizes foreign publishers (for the biggest players in this publishing market are non-American firms, making HR 801 a kind of "Foreign Publishers Protection Act")?

Well no one can know what goes on the heart or mind of Congressman Conyers. But what we do know is what MAPLight.org published yesterday: That the co-sponsors of this bill who sit on the Judiciary Committee received on average two-times the amount of money from publishing interests as those who haven't co-sponsored the bill.

Now maybe that's just a coincidence. Maybe Conyers and his friends had a reason of principle to support a bill said by experts to "harm science in America." But if he did, then he more than anyone else should want a system for funding elections that makes it impossible for people like me to suggest that maybe it wasn't reason that led him to his silly support for such a stupid bill.

Yet another reason to support citizen funded elections. Yet another reason to join the strike ("strike4change.com") Change Congress has launched. Promise not to give money to any candidate who doesn't support irrevocably citizen funded election. (Come on. You don't want to give anyway.)

At the very minimum, ask Congressman Conyers to explain exactly why -- if it wasn't the money -- he's so keen to hurt science.

On Tuesday, April 7, the National Federation of the Blind will protest in front of the Authors Guild headquarters, at 31 East 32nd Street, New York City. The protest criticizes the Authors Guild's bullying of Amazon to get them to shut of the Text-to-Speech functionality on the Kindle 2. The Authors Guild demands that blind people wanting this added and enabling technology must either submit to a burdensome special registration system and prove their disabilities or pay extra for the text-to-speech version.

Read more about the protest here.

The Authors Guild -- once again, working hard to make the work of all but the wealthiest authors less valuable.

I'm a big believer in carbon offsets (not so much the cap and trade game, but in the simple internalize-your-externality-sort). I talk about it in my Green Culture talk. IMHO, we all have an ethical obligation to offset our carbon footprint -- now. My wife and I have been doing so for a couple years. We're a couple months late buying credits for last year.

One reason we're late (other than the obvious) is the insane complexity in calculating it well. I travel way too much. That's the biggest chunk to cover. But to calculate it accurately requires churning through a pile of flights. I could estimate, no doubt. But I want something more accurate.

So I was really happy to see on the United page an announcement of a "Carbon Offset Program." What I expected it to be was a simple way to at least know what the total carbon footprint from your flights for some period was (after all, they have all the data), and ideally, a simple way to buy offsets.

No such luck. United has simple linked to one of the million places where you can calculate a per flight carbon cost. It allows you to input total miles flown, but its Mileage Plus page doesn't give you total miles flown, it gives you the total added to your account (included bonuses, etc.)

Looking forward to version 2.0.

As you may have read me tweet, the organization that hosted me for this talk:

Received a notice that Warner Music had objected to its being posted on copyright grounds. Apparently, YouTube's content-ID algorithm had found music in the video that they claimed ownership to. The organization is apparently responding by disputing the claim. I'll report back when I hear more.

Meanwhile, Keith Irwin (site) has kindly gone through the talk and identified all the music that is used in the talk. All of that use is, imho, fair use. But here's the list. Thanks to Keith for the work:

Danger Mouse - The Grey Album
DJ Mystik - Inspector Gadget Techno remix (no idea what record label)
The Muppets - Mah Na Mah Na (Muppets Holding Company <- Disney)
Diana Ross and Lionel Richie - Endless Love (Motown <- Universal)
DJ Unk - 2 Step (Koch Records)
Soulja Boy Tell 'Em - Crank Dat Soulja Boy (Stacks On Deck <- Interscope <- Universal)
Girl Talk (IllegalArt)
will.i.am - Yes We Can (not released by a label)
Kutiman-Thru-You - Mother of all Funk Chords (not released by a label)

UPDATE: Apparently the protest filed by the uploader to the block was successful. This was the segment that was blocked. We'll see if it sticks.

UPDATE II: I now have received the text of the block on YouTube. It said: "Your video, Part 2: Lawrence Lessig - Getting a Network the World Needs at OFC/NFOEC 2009, may have audio content from Mahna Mahna by The Muppets featuring Mahna Mahna & The Two Snowths that is owned or licensed by WMG."

To get into law school, most require you take the LSAT. That test is administered by LSAC, a nonprofit corporation established to administer the tests.

But to get copies of the old tests to prepare for the exam, a student has got to purchase the tests through a test prep company -- a company that sells test preparation courses.

According to Steve Schwartz of the LSAT Blog, LSAC receives $194 for each student who receives a full set of the exams. As Schwartz puts it, "[w]hen LSAC has prep companies do the printing, that $194 is pure profit, baby." LSAC simply provides the PDFs.

This isn't an ordinary topic in this space. But then again, teaching law students is my profession. And it would seem a nonprofit would be keen to find a better way to make access easier. As Schwartz suggests, the exams should be free, or at least, following iTunes, $.99. Read about it here.

So I buy a Kindle book for my Kindle 2. It downloads to my machine. I open up the book -- it has no relation (except the relation of "not") to the book I ordered. Three emails, 4 days later, Amazon has still not responded to the problem. I wonder how they begin to discover/fix such a problem.

Exactly two years ago today, the New York Times published an op-ed about copyright by a novelist. The piece caused something of a digital riot. As we learn now from his book, Digital Barbarism (HarperCollins 2009) (note: if you buy from that link, Creative Commons gets the referral fee), Mark Helprin was at the time completely ignorant about the hornet's nest he was about to kick. For him, the op-ed was a professional rapprochement with the New York Times, a chance to make things right once again (though why they were then wrong is a story left mysteriously (and thankfully) out of the book).

(Read the rest of this insanely long review in the extended entry. You can download a better formatted PDF here.)

As I wrote last week, I threw away a week I didn't have penning an "insanely long" review (as I described it), of Mark Helprin's insanely sloppy "Digital Barbarism."

The part of that book that really got me going was the incessant Red-baiting -- the suggestion that the movement of which I am a part is a kind of warmed over Marxism from the 1960s.

That part always gets me going because it betrays a kind of mushiness in thinking that I should have thought a decade of writing by scores of advocates would have driven away. As I wrote about Helprin:

It is in this extreme of Red-baiting that one can see the mushiness of Helprin's brain: Let's say he were attacking a bunch of scholars who believed copyright should be as robust as the Framers of our Constitution had it. That was a regime that secured copyrights only to those who registered their work. And not just any work, but only "maps, charts, book or books" (music, for example, was excluded). Imagine the term of the protection was again just as the Framers made it -- 14 years, renewable by the author, if living, for another 14 years (but again, only if he registered the renewal). And imagine finally that the rights granted were forfeit if the author failed to deposit the copyrighted work with the government, or if he failed to mark the work with the appropriate sign. Such a reform would certainly be radical. It is wildly more radical than anything any of the scholars Helprin attacks would recommend.

But here's the question: would one who so recommended be a "collectivist"? Were our Framers "collectivists"? Obviously not. Because the consequence of a limited copyright is not that the collective gets to control who does what. The consequence of a limited copyright is that the work is in the public domain, and anyone has the liberty to do anything he or she wants with the work. The state or the "collective" is not privileged over the individual. The individual is privileged over the state or "collective." And so strong is that privilege in America that a Court of Appeals in Colorado recently held that the government can't remove work from the public domain unless it satisfies a strict First Amendment test first.

The kind words of some in response to the review made me think perhaps the week wasn't completely wasted. But then as I got settled into a 13 hour flight to Australia, I read this piece by Kevin Kelly, "The New Socialism."

Words have meaning. We don't get to choose their meaning. If you call something "X" people will hear the equation. They won't read the fine-print which says ("By X, I mean really not-X).

Kelly says:

When masses of people who own the means of production work toward a common goal and share their products in common, when they contribute labor without wages and enjoy the fruits free of charge, it's not unreasonable to call that socialism.

That statement is flatly wrong. It is completely unreasonable to call that "socialism" -- at least when the behavior described is purely voluntary. It's like saying "Because Stalin set up a competition between different collective farms, it's not unreasonable to call that free market capitalism." Both statements are wrong because they point to a feature that is common, and ignore the feature that is distinctive. At the core of socialism is coercion (justified or not is a separate question). At the core of the behavior Kelly celebrates is freedom.

Kelly's argument is like so many today that has implicitly embraced the view that free market, libertarian sorts believe that the only thing in the world is competition, or people working to non-common goals. It is the idea that we are free only if we are antagonistic, and that free market theorists have been working to create a world where individuals struggle against, not with. A world that aspires to dog-eat-dog as its central value.

But that conception of capitalism/free-market/libertarianism has no basis in fact. And so as I ranted in my head about Kelly's confusion, I was enormously happy to have the chance to hear an economist at the conference I was attending at Canberra present a paper that (unintentionally) completely destroys Kelly's thesis.

Nicholas Gruen is an economist with the consulting group, Lateral Economics. His paper (PDF) (blog entry) was titled "Adam Smith 2.0: Emergent Public Goods, Intellectual Property and the Rhetoric of Remix." And he introduced the paper by remarking a fact that I had missed -- this year is the 250th anniversary of Adam Smith's first (and last) published book, A Theory of Moral Sentiments (alas, the second edition). (Last because he finished his 6th edition of the book responding to the terrors of the French revolution just before he died in 1790).

What the modern misunderstanding of markets forgets about Smith is that his aim was as much to understand the provision of public goods as it was to understand the role of the market. Indeed, you could only understand the role of the market against a background of public goods (including civil society), and one critically important question is how a society produces those public goods.

Unlike statists of later years, Smith was fascinated by emergent public goods -- goods that were public goods (since nonrival and nonexcludable, as economists later would formalize the concept), but that were created not by any central actor like the state, but by the mutual and voluntary actions of individuals. Language is the simplest example -- language is a quintessentially public good, but no central coordinator is necessary to produce language. But Smith was eager to describe a wide range of emergent public goods that set the preconditions to a well functioning market.

Obviously, in this focus on civil society, Smith is not alone -- even among the heros to libertarian/capitalist/free marketeers. In this respect, Hayek continues the tradition Smith began. He too was deeply sensitive to the health of civil society, and recognized how civil society was produced by "masses of people who own the means of production [and] work toward a common goal and share their products in common, [people who] contribute labor without wages and enjoy the fruits free of charge." But Hayek too was not "socialist."

The thing that Smith was pointing to (and Hayek too), is not "socialism." It is not reasonably called socialism. Because "socialism" is the thing Smith was attacking in the 6th edition of his Theory of Moral Sentiments. Socialism is using the power of the state to force a result that otherwise would not have been chosen voluntarily by the people. As Gruen quotes Smith:

The man of system. . . is often so enamoured with the supposed beauty of his own ideal plan of government, that he cannot suffer the smallest deviation from any part of it. . . . He seems to imagine that he can arrange the different members of a great society with as much ease as the hand arranges the different pieces upon a chess-board. He does not consider that the pieces upon the chess-board have no other principle of motion besides that which the hand impresses upon them; but that, in the great chess-board of human society, every single piece has a principle of motion of its own, altogether different from that which the legislature might chuse to impress upon it. If those two principles coincide and act in the same direction, the game of human society will go on easily and harmoniously, and is very likely to be happy and successful. If they are opposite or different, the game will go on miserably, and the society must be at all times in the highest degree of disorder.

Coercive government action is -- IMHO -- a necessary condition of something being "socialism." It isn't sufficient -- there is plenty of coercive governmental action that doesn't qualify as socialism, like raising taxes to fund national defense, or to pay the police. But if you're calling something "socialist," then a requirement for using that term correctly -- meaning in the way it is understood at least by people who don't take the time to read a 3,500 word essay that redefines the term -- is to be able to point to the coercive state action that produces the thing you're talking about.

I'm not an opponent to all things plausibly called "socialist" (though as I'll argue in a moment, our political culture could do well to avoid the most prominent examples of socialism that Washington has produced over the past 8 years). A graduated income tax could properly be called "socialist," because it is coerced, though I'm in favor of it. Forcing polluters to internalize the cost of their pollution (carbon as well as others) is not, in my view, properly called "socialist," even though it is the product of coercive state action. There are many examples in the middle of course -- schools, parks, public highways. But all of the examples of proper "socialism" begin with pointing to coercion by the state. A conservative Baptist church is not "socialist" when it voluntarily collects money to give to the poor, even though the result is similar to the result of a "socialist" plan to redistribute money from the rich to the poor.

On this account, none of the things that Kelly (and I) celebrate about the Internet are "socialist." No one forces Wikipedia editors to build a free encyclopedia. No one sends to the Gulag (Helprin's book notwithstanding) photographers who don't use CC licenses to share their photographs in Flickr. Scientists who share their research freely within the Public Library of Science are not necessarily friends of Che. They may be. But their freely sharing their knowledge is not a certain signal of leftist leanings.

All this would have been obvious to Kelly if he had included in his list of purportedly "socialist" organizations the Christian Right. Say what you want about the politics of the Christian Right (and don't get me started), one can't say they are "socialists." But likewise, whatever you think about organized religion (and again, don't get me started), one can't deny that it represents "masses of people who own the means of production work[ing] toward a common goal and share[ing] their products in common, [] contribut[ing] labor without wages and enjoy[ing] the fruits free of charge." Yet it would be patently "unreasonable" to call the Baptist Church "socialism."

Likewise might this have been obvious if Kelly had focused on other writing about the stuff he and I celebrates, that emphasizes more than Benkler, for example, the commercial or business dimension to this phenomenon. Half of REMIX is about what Kelly calls the "hybrid," but my point is about the hybrid as a business strategy. So too with the fantastic book, Wikinomics. Again, the focus of that book is on how a sharing economy gets leveraged by a commercial economy to benefit both. In no instance is that leveraging coercion. In no way, therefore, is it "socialism."

Now of course Kelly works hard in his essay to disassociate the term "socialism" from lots of "cultural baggage" (as he puts it; victims of the Gulag may have a different way of describing that): As he writes:

The type of communism with which Gates hoped to tar the creators of Linux was born in an era of enforced borders, centralized communications, and top-heavy industrial processes. Those constraints gave rise to a type of collective ownership that replaced the brilliant chaos of a free market with scientific five-year plans devised by an all-powerful politburo. This political operating system failed, to put it mildly. However, unlike those older strains of red-flag socialism, the new socialism runs over a borderless Internet, through a tightly integrated global economy. It is designed to heighten individual autonomy and thwart centralization. It is decentralization extreme.
Instead of gathering on collective farms, we gather in collective worlds. Instead of state factories, we have desktop factories connected to virtual co-ops. Instead of sharing drill bits, picks, and shovels, we share apps, scripts, and APIs. Instead of faceless politburos, we have faceless meritocracies, where the only thing that matters is getting things done. Instead of national production, we have peer production. Instead of government rations and subsidies, we have a bounty of free goods.

I launch this rant against a friend not to betray a Stallman-like-tic. I think think some fuzzy language is productive. I don't insist on precision at every linguistic turn.

But sloppiness here has serious political consequences. When a founder of the movement which we all now celebrate calls this movement "socialist," that plays right in the hand of those would attack everything this movement has built. Again, see Helprin. Or Andrew Keen.

It is a fact that in America the term "socialism" is a smear. I'm not defending that fact. I wouldn't give up defending programs merely because they could be so smeared.

But I do think that now is not the time to engage in a playful redefinition of a term that has such a distinctive and clear sense. Whatever "socialism" could have become, had it not been hijacked by revolutions in the east, what it is in the minds of 95% of America is not what Wikipedia is.

And indeed, when I look around at the real socialism of the past decade, I am almost Declan-esque in my revulsion towards it: America has plenty of "socialism." The most recent versions we should all be very skeptical of. This is the general practice of socializing risk, and privatizing benefits. I'd be happy to join the "anti-socialist" movement if we could agree to end that perversion first.

But that deal notwithstanding, I will never agree to call what millions have voluntarily created on the Net "socialism." That term insults the creators, and confuses the rest.

There's an interesting resistance (see the comments) to my resistance to Kevin Kelly's description of (what others call) Web 2.0 as "socialism." That resistance (to my resistance) convinces me my point hasn't been made.

Confidence about my "ignorance" about political philosophy notwithstanding (and don't tell my political philosophy tutor from Cambridge where I spent three years studying the stuff), my point is not that it is impossible to understand "socialism" as Kelly describes it. (Obviously, if a missile can be a "peacekeeper," anything can be anything). It is not even that never in the history of "socialism" have people so understood it (there have of course been plenty of voluntary communities that have called themselves "socialist"). Instead, my argument against Kelly was about responsibility in language: How would the words, or label, he used be understood. Not after, as I said, reading "a 3,500 word essay that redefines the term." Rather, how would it be understood by a culture that increasingly has the attention span of 140 characters?

In my view, the answer to that question is absolutely clear: "Socialist" would be associated with the dominant, modern vision of "socialism" which has, at its core, coercion. And as the Internet that Kelly and I celebrate doesn't have "coercion" at its core, I maintain, it is not "socialist."

In reading the reactions to my argument, however, I realize that in using the term "coercion" I was committing the same error that I was accusing Kelly of making. People associate the word "coercion" with Abu Ghraib or Stalin. And certainly, the "coercion" of socialism isn't necessarily (or even often) that.

That's fair. By "coercion" I meant simply law -- that "socialism" is a system enforced by law, and enforced contrary to the way individuals would freely choose autonomously to associate. Again, I'm for that kind of coercion in lots of contexts. I'm for income redistribution (to some degree); I want better public schools, I want to force you to vaccinate your childeren, etc. So I didn't mean anything necessarily negative by the term "coercion." I meant something analytical: That Wikipedia, if it coerces, coerces differently from how 95% (of Americans) at least understand the term "socialism."

Again, if you doubt that, think about American critics of "socialism": None of them are complaining about people voluntarily choosing to associate however they choose to associate (except of course if they are gay). They are complaining about people being forced to associate in ways they don't choose to associate. There's nothing inconsistent with someone being a Right Wing (and anti-socialist) Republican yet working at a church soup kitchen every other Saturday. Those spheres are separate in the American mind. Because they are separate, one can choose to be a Wikipedian and see no inconsistency in voting for Ronald Reagan.

(But aren't the "freely chosen obligations" often enforced (i.e., in my terms, "coerced") by the state? Of course they are -- as the Legal Realists and most recently Critical Legal Studies Movement worked very hard to remind us. But they had to work so hard because they were working against a very solid assumption about the sense of the term "coercion." They wanted to change it. But they at least acknowledged there was something there to change.)

So my argument against Kelly is that it is wrong to use a term (in the context of a Wired essay at least; a philosophy seminar would invoke a completely different set of ethics) that would be so completely misunderstood. We choose our words. We don't choose our meaning.

But if you're still not convinced, then here's a hypothetical that makes the same point. (And note, I'm being REALLY careful here -- this is ONLY a hypothetical):

Imagine someone said Barack Obama's economic policies were "fascist." But by that the person didn't mean the Fascism of the later German Nazi Party. He didn't mean, that is, the racism that came to define the term. Instead, he meant the Fascism of the early National Socialist Party, or of their equivalent in Italy, or England, or the earliest of FDR's administration.

My point is that however accurate it would be to describe the current "Czar" filled administrations with the centralizing and corporatist politics of the early 1930s, it would be unethical to call it "fascist." The term has been marked, just as the name "Adolf" has been marked, and in mixed, attention deprived contexts, it is wrong to ignore that marking.

Secondly, and finally: Even if it weren't, Kelly's description would be wrong. Even if there were a useable concept (as opposed to a possible concept) of "voluntary socialism," it would be wrong to describe what most think of as Web 2.0 as "socialist." That again because of the part Kelly ignores. Sure, there's a "sharing economy" as I describe in REMIX. That economy fits well with the Kibbutz or Wikipedia. And if you want to call that "socialist," fine. But the "hybrid" economy is not that economy. The Facebooks and Twitters and Flickrs and Yelps! are not entities engaged in a global urge to hug. They are companies that promise investors a huge return from their very risky investment. To do that, of course, they need to behave differently from the dominant mode of, say, Hollywood lawyers. But if they behave like Gandhi, they're not going to succeed at their mission -- which is (however much "change the world" or "don't be evil" is in the plan) to make money. Those people are not "socialists" (except in the corrupted sense that defines the term in many places today). Those people are members of a hybrid economy. What Tim calls "Web 2.0." And while I can well understand that someone would feel "torture," as Kelly puts it, using that term (I don't feel it, but who am I dictate to Kelly), the fear of that torture doesn't justify this violation of the ethics of language. The freedom of Wikipedia et al., is threatened enough. We don't need to throw the baggage of "socialism" into the bargain.