Lessig

This letter by Adam Smith on behalf of the "New Democrat Network" asking Cybersecurity Czar Richard Clarke to avoid GPLd software deserves a response. Here's a short one by me. And if you agree, then you should respond here.

ESR has a wonderful analysis of the latest Halloween document from (some mole in) Msft. Eric rightly emphasizes substantial good news. Yet though this may be just my nature, I think there is more here to be worried about than the good news suggests. Bottom line: Regardless of our OSS/FSF loyalties, we need to work hard to de-FUDify GPL.

So there's this amazing site (for opera fans at least) called MetManiac, which before the lawyers found it, collected lists of Met opera performances from the beginning of the Met. Non-commercial, pure hobby, an extraordinary historical resource, this was the passion of a fan. If you follow the link, though, you'll see the Met lawyers have demanded the site be shut down. (Shhh, but if you follow Brewster's link, you can see what the page was. Don't tell the lawyers, however, as they'll shut that down too.)

Can anyone explain what sense it makes that this fan site, which collects historical facts about an important part of our culture, can be banned? I know the lawyers say "the law makes us do it" -- that trademark law, etc., requires that they police the way other people use their name. But what possible sense does such a law make. And at a time when opera around the world is struggling for resources to build an audience, what possible sense does it make to begin to attack your fans?

Here's a company to watch: eAccess, Japan, building the fastest growing aDSL network in the world. They now offer 12 mbs (yes, I mean 12 mps) for $26/m, service within 7 days. And to celebrate their amazing success, on 12/12, they go public.

Talk to the extraordinary president of eAccess, Sachio Semmoto, and he'll tell you the key to eAccess's success: That Japan learned from the United States that access to copper had to be "open." Open access meant new competition; competition has driven prices down, speed up.

It's an amazing thing, competition. Apparently it doesn't work in America, though. Now that the Japanese have profited from the American lesson on regulation, the Americans are retreating. The FCC is moving as quickly as it can to undo open access requirements.

Jabber has written a powerful piece about the threat that AOL's patent covering IM technology creates for innovation in the IM market. Even if AOL does not enforce the patent, as Jabber argues, the threat that it may makes is much less likely that innovators will invest time to develop IM technology. AOL's sword will be enough to keep innovation away, Jabber says.

These issues are complex, but this case does lots to highlight just what wrong about the software patent business. Does anyone really believe that there was inadequate incentives to be inventing in this area? Was there really a need for a government monopoly to help spur innovation? And even if there is, does a 20 year monopoly over something as fundamental as IM make sense to anyone?

Vardi and his son were brilliant inventors. They deserve all the credit in the world. And it is exactly the wrong (since self-defeating) response to now attack AOL: They are a business; the managers are hired to make money; they will make money however they can given the rules as they are.

The appropriate response is to attack the system. It is four years since a court held that software and business methods were patentable. What exactly have we done since then to get legislators to fix this mess?

The Supreme Court has rejected our challenge to the Sonny Bono Law.

I had dinner last night with an extraordinary group of computer scientists. As always in such contexts, the discussion moved quickly to patents. I've been a skeptic about software and business method patents for a long time (while a supporter of, e.g., drug patents), but what always strikes me in these contexts is how violently opposed people in the industry are to software and business method patents while the legal system remains oblivious.

I had thought there was some hope in the new administration. An article by LA Times reporter David Streitfeld quoted the new Patent Commissioner, James Rogan, saying smart and skeptical things about the patent system. I wrote a piece for the FT based in part on that interview, only to have his office call me to tell me that I had gotten it wrong. The "crisis" that Commissioner Rogan sees is not the "crappy patents" (their words) issued by the patent office; the crisis, I was told, is that the office is not issuing patents fast enough.

But the more frustrating response to my article was the follow-up by Professor Epstein. He called my "indictment" "harsh." As he says, "to my knowledge" there is "no fundamental signs of breakdown." He points to "OS X by Apple" as evidence that "strong intellectual property rights [have not] Balkani[z]ed the intellectual universe." "One looks," Epstein writes, "for fundamental flaws in the underlying institutions only when the progress starts to grind to a halt."

My initial (and uncharitable) response to reading this was that Professor Epstein was not looking very far. But after dinner last night, I recognized that there is a fundamental gap in understanding. Most lawyers and policy makers do not understand what technologists believe; most technologists don't understand that (at least some) lawyers believe that what technologists believe about the system should matter.

So here's an idea. I'd like to construct a page of views of technologists who have experience with the system. The aim will not be to evaluate the system as a whole, but instead to collect credible testimony about the burdens the system imposes. Policy makers should be evaluating whether the benefits outweigh the burdens. My aim is not to do that weighing. My aim is simply to collect stories and evidence about the burdens.

If you have experience and a view, then email me and describe both. I will collect them and verify the source, and then make the results available here. The aim is not to conduct a poll; this will not be a representative sample of anything. But it would help immensely to have a place where people could go to read what technologists say to me all the time.

Update: Karl-Friedrich Lenz has sent a link to a great list of patents. This is important and useful, but I'm eager to hear stories of how the system affects ordinary software development.

Thanks to Sean McGrath for sending me this wonderful story about the first copyright wars. The story is told in Ingenious Ireland by Mary Mulvihill, about the 3000 men who died in the "Battle of the Book at Cooldrumman" after copyists refused to return the copies after a court ruled against them. Perspective perhaps, but precedent too?

They say I'm a pessimist about the future of freedom on the net, and they've got two books of mine to prove it. But the report that the RIAA has now filed suit against four students for sharing content over a university network is a moment of hope. If we work hard to report the details and reality of this suit, then the extremism of the RIAA's tactics will finally get through.

Let this extremism finally force recognition of the best response to this problem for now: a compulsory license with a large carve out for non-commercial "sharing." Napster proposed as much in 1998. Had Congress listened, then we would have had just as much sharing over these last 5 years, but artists would have 5 years of income, and fewer of our children would now be felons. Instead, Congress did nothing (except pass the Sonny Bono Act and the DMCA), and 5 years later, artists are no better off, our kids are now "terrorists" (such is the rhetoric of the other side), and the cartel of the RIAA is only stronger.

What politicians need to remember is that Congress has always adjusted the rules by which creators get paid as a response to new technology. That's just what they should be doing today. Never before has the law been used to force new technology into old way of doing business. Every time before this, it was the law that adjusted to assure artists got paid given the new technology.

There are any number of proposals floating about just now for a compulsory license for content [Ed Felten has a nice post on this; my favorites are William Fisher's from Harvard, and Neil Netanel's from Texas] -- a way to free content while assuring that artists get paid. All of them would also have the salutary effect of leaving our courts to deal with real criminals (can anyone spell Enron anymore?), and leaving the internet to do what it does best (making content broadly and efficiently available).

It's time for Congress to turn its attention to constructive ways to assure that artists get paid without destroying the extraordinary freedom of the internet. This has been Congress's role in the past. It needs to get beyond the distortions of a bunch of lobbyists if its to play its proper role in the future.

So this story continues to amaze me. Pennsylvania has a law that gives the Pennsylvania Attorney General the power to order an ISP serving Pennsylvania citizens (read: any ISP anywhere) to block a site which the Pennsylvania Attorney General says serves child porn. There is no judicial review of the order, and as no ISP is likely to resist the order, the law results in unreviewed censorship of internet content. According to this report, the AG is now refusing to even reveal the list of sites his secret orders have blocked.

There are hard cases in the law of cyberspace, no doubt. But this should be a slamdunk easy case -- if anyone would have the courage to challenge it. CDT is exploring a challenge. Good for them. If the First Amendment means anything, it must mean that the government can't order the censoring of a publication without any judicial review at all. You might want to tell the Pennsylvania AG what you think. Here's a form.

Two articles from The Hindu suggest the interesting world we've entered. In the first, India's Union Minister for Civil Aviation says that the doctrine of "pre-emptive war" (relied upon by the United States to justify its war in Iraq) should be used to justify a war against Pakistan to counter its allegged support for "terrorism." In the second article, Pakistan says that there is "ample proof that India possesses biological, chemical and other weapons of mass destruction" and of the "massacre of innocent civilians in Ahmedabad and Kashmir" and therefore is a fit case for "pre-emptive strike."

An interesting mix of Senators has written a strongly worded letter to Chairman Powell about his apparent decision to revise media ownership rules without public hearings. This does seem a curious way to launch profound changes of media policy -- in a democracy at least.

There's a standard dance that the IP extremists do well: When they lose in Congress, they go overseas and negotiate a treaty that imposes on the US the same obligation they just lost in Congress; then they come back and say, "we must do this to live up to our international obligations."

So here we go again: The US Trade Representative is negotiating trade agreements with Chile and Singapore. The agreements essentially require these two countries to adopt the DMCA, and make it a violation of "our international obligations" if we were to change the DMCA. Representatives Lofgren and Boucher -- who both have bills introduced to amend the DMCA -- have written a strongly worded letter to the USTR asking for clarification. For consistent with this policy making process, just what is being promised is never made clear -- until it is too late. Here's the letter.

This story is beginning to walk. Donna launched it. JD Lasica has collected a bunch of links on his page. JD points to a great little piece by Jesse Walker of Reason. And Amy from the Harvard blog has been writing about this for a while.

It is a month till D(eregulation) Day. We've given them the language (how is it "deregulation" when it will produce 3 companies owning everything?); there's much more to do if the call mediageek has echoed is to have any effect.

Bob McChesney has been studying concentration in media for a long time. His challenge is worth reading.

Bruce Lehman -- the Clinton Administration's IP czar and a debate no-show (he's scheduled and not shown at at least two debates that I know of -- one with Jamie Boyle, and one with me) -- has been doing more good in the world. As reported in Technology Review and commented upon at TeleRead, when a Cairo consortium called WIPO to ask for advice about images of Egyptian artifacts that they wanted to place on the web, Lehman's new international organization sent a lawyer to Cairo to advise them against spreading such knowledge freely. Better to copyright and control access to such knowledge. The images, he is reported to have said, "should be licensed."

We'd suggest a Creative Commons license, or at least some way to keep Mr. Lehman at home.

This is a great piece about the mistake in the administration's recent trade agreement with Singapore -- requiring it (and us) to stick to the DMCA. Less noticed is article 16.4.4 which increases the term of copyright from 50 pma to 70 pma. (Remember, we had to increase our term to harmonize with the rest of the world; now the administration is pushing the rest of the world to increase its term to harmonize with us).

The frustration in all this is the total disconnect between criticism and governmental response. It is the form of a democracy, but with none of the substance. We make mistakes, and we force them on the rest of the world. The world then simply adopts the mistakes we make -- in the face of overwhelming criticism.

For example, has anyone explained why, if a country needs a DMCA law, it can't pass a law that respects fair-use like exceptions? Or if a country needs to extend copyright terms, it can't limit the extension to works with commercial value?

The world loves to criticize the US, and criticize they often should. Yet the criticism would look a bit more credible if critics didn't dress like puppets.

Mr. Gates has proposed his solution to spam. Unfortunately, it is yet another idea that will not work.

The problem the MSFT solution aims to solve is the problem of distinguishing good spam from bad. The proposal has a clever (though I think dangerous) safe harbor provision to "create incentives for email marketers to adopt best practices, and to certify themselves as trusted senders who can be more easily identified by consumers and filters alike." Presumably, if we know which marketers are "trusted senders" we can accept their mail, and block all the rest -- spam and non-spam alike. Thus, email would become a more effective channel for trusted marketing -- but little else.

The safe harbor provision could make sense if there were a background requirement that all spam be labeled. There's a hint of that requirement in the letter Mr. Gates wrote to the Senate Commerce Committee ("participants would be entitled to avoid the burden of additional labeling requirements (such as "ADV:" )"). But the proposal doesn't actually endorse a labeling requirement. And without it, the proposal does nothing to distinguish real email from HGH sellers. The proposal would help distinguish HGH sellers from, say, Amazon. Wonderful, but I didn't know that was the problem.

The proposal does say lots about making sure ISPs and state attorneys general have the power to sue -- again, like most (but not all) solutions, centralizing the enforcement function. But all such solutions will fail because a centralized system for enforcing spam regulations will never be enforced. ISPs and state attorneys general have better things to do than enforce spam regulations. They always have; they always will.

This is the key point: the enforcement problem. Whatever the requirement, if it is not effectively enforced -- meaning that most spammers do not fear that they will be caught and punished for failing to obey a requirement -- then it will fail. And if it is effectively enforced, then it will work even if its penalties are not harsh. Solve the enforcement problem, and a slap on the wrist will work. Fail to solve the enforcement problem, and even the death penalty would be ineffective.

It's no surprise that Congress doesn't get this. Congress gets points for "seeming" tough. If you seem tough, it doesn't matter if your ideas work. So puffed-up "get tough" rhetoric tied to totally ineffective legislation is the norm.

But it is a surprise that a company as skilled as MSFT would make the same Washington (DC) mistakes. Mr. Gates has done extremely well in world where mistakes hurt profits. He is doing extraordinary good in the world where generosity (indeed, astonishing generosity) corrects for policymakers' mistakes. But as a policymaker himself, he is still MSFT v1.0.

Let's hope he gets to MSFT v3.1 soon.

So it you want to read a story about extremists, here's one that's hard to beat. These people are looking for help, so anyone in New York who can help should follow up. I have permission to post this, but I haven't verified the facts.

Declan's got a great piece about the Council of Europe and rights to reply.

Senator Hatch has been swallowed by the extremists. (Though this might not be such a bad idea. Can we bomb the offices of stock brokers thought to be violating SEC regulations? Or bulldoze houses of citizens with unregistered guns? Or -- yes, this is good -- short the telephones of people who use indecent language?)

If you have not yet, you should consider contributing to the RIAA scapegoats. Jesse Jordan's story is particularly extraordinary. He built a search engine for RPI's network -- one of a half-dozen such engines running at the time. Three-fourths of the files in the directory were not music files. Yet he was sued by record companies, demanding hundreds of millions in damages.

When they discovered that he had saved $12,000, they gave him a classic Sopranos-like choice: Either defend yourself in court (which would cost his family over $200,000) or pay us $12,000. He handed over the $12,000.

He, and some of the other student defendants, have set-up donation booths. Whatever your view about these issues, you should consider contributing. Whether or not the RIAA is right about the law, there is something deeply wrong about using the law to squash the likes of Jesse. He was not running Napster; indeed, he did nothing more than hack an improvement to an already existing search technology that existed in RPI's net. Yet as the RIAA lawyers knew, it would cost him more to fight this suit than to settle it. So his defense would never get a chance to show that the law is not yet as extreme as the RIAA lawyers would like it to be.

Our legal system gives companies like A&M Records the power to do this to people like Jesse. We each, individually, by donating to these students, can help remove some of the burdens of that flaw. We all, collectively, should do something to change that legal system to remove that flaw. Soon.

Dan Gillmor nicely captures the truth around the emerging spam consensus in DC: A spam bill that will make it (1) harder to decline UCE from companies with famous logos, and (2) impossible to block UCE from spammers.

I'm relieved to find myself again in disagreement with Declan. In the simple world that images just two choices -- regulation or no regulation -- Declan thinks Microsoft is behaving inconsistently. Microsoft has argued (rightly and wrongly, depending upon the case, imho) against various examples of regulation. But Declan is now aghast to discover that Microsoft has been now lobbying to get the FCC to impose a different form of regulation. Oh my gosh! Imagine that!

The problem here is not Microsoft's. The problem is Declan, and the simple-isms that continue to reign in Declan-thought. No one serious opposes all regulation. No one serious supports all regulation. The only serious debate is whether a particular regulation makes sense.

The particular regulation that Microsoft has endorsed does, in my view, make lots of sense. As Microsoft described in FCC hearings, increasingly, cable companies are beginning to assert the right to decide which applications will run on their cable networks. Microsoft faced this when they tried to deploy Xbox technology. Tim Wu has other examples of this control here.

Declan quotes many who say, hey, no reason to worry. There's no good evidence that there is any significant discrimination -- yet.

But this is the part of this argument that convinces me Declan is spending too much time in Washington, and should go back to his CompSci roots. The issue here is not "regulation vs no regulation"; the issue here is the continued viability of any end-to-end architecture to the Internet.

If in fact networks are allowed to decide which applications and content can run on the network, then "the Internet" is dead. Sure, there will be a network out there -- the cable network, or whatever you want to call it -- but it will no longer be "the Internet" that Saltzer, Clark and Reed wrote about.

And, more importantly, and completely contrary to the non-thought that now reigns in Washington about this: the very possibility that this is the future of the Internet is having an effect on investment right now.

The point is obvious (save to those who inhale the DC air): Investments in technologies for the Internet are being made today, based upon the expectations about what the Internet will be in 3-5 years. If cable companies are allowed to decide what applications and content gets to run on that network, then the cost of innovation has been increased right now. If everyone with an Xbox technology needs permission to use the Internet, then what everyone should begin to recognize is that only Microsoft -- and others with their money and power -- will have permission to use the Net.

Maybe that's ok with Declan and the Cato types. After all, they're fighting for a principle -- "no regulation." Ah yes. "No regulation."

What planet do these guys come from?

I don't even know how to begin this story, so stupid and extreme it is.

The World Intellectual Property Organization (WIPO) was convinced by Jamie Love and others to hold a meeting about "open collaborative models to develop public goods." One of those models is, of course, open source and free software. Lobbyists for Microsoft and others apparently (according to this extraordinary story by Jonathan Krim) started lobbying the US government to get the meeting cancelled. No surprise there. Open source and free software is a competitor to MSFT's products. Lobbying is increasingly the way competition is waged in America.

But the astonishing part is the justification for the US opposing the meeting. According to the Post, Lois Boland, director of international relations for the U.S. Patent and Trademark Office, said "that open-source software runs counter to the mission of WIPO, which is to promote intellectual-property rights." As she is quoted as saying, "To hold a meeting which has as its purpose to disclaim or waive such rights seems to us to be contrary to the goals of WIPO."

If Lois Boland said this, then she should be asked to resign. The level of ignorance built into that statement is astonishing, and the idea that a government official of her level would be so ignorant is an embarrassment. First, and most obviously, open-source software is based in intellectual-property rights. It can't exist (and free software can't have its effect) without it. Second, the goal of WIPO, and the goal of any government, should be to promote the right balance of intellectual-property rights, not simply to promote intellectual property rights. And finally, if an intellectual property right holder wants to "disclaim" or "waive" her rights, what business is it of WIPOs? Why should WIPO oppose a copyright or patent rights holder's choice to do with his or her rights what he or she wants?

These points are basic. They should be fundamental. That someone who doesn't understand them is at a high level of this government just shows how extreme IP policy in America has become.

The thread about Ms. Boland's (mis)characterization of open-source software (remember the days when statements were either true or false?) reminded me of an odd fight I found myself in the middle of at the World Summit on the Information Society (WSIS) in Geneva in February.

I was asked to give one of three keynotes launching the second preparatory conference. At a press conference before the keynote, a reporter asked what I was going to talk about. I indicated vaguely I would discuss the importance of the public domain to innovation, etc. (same old boring stuff). But I was then astonished when the moderator of the event, Maria CATTAUI, Secretary-General of the International Chamber of Commerce, scolded me that issues of "intellectual property" were not to be discussed because they were "exclusively" the concern of WIPO.

I promptly threw away the talk I had intended to give, and gave a completely different talk about how -- Ms. Cattaui's scolding notwithstanding -- it was crucial that a summit on the world "information society" consider the role of the public domain in spreading knowledge and culture even if WIPO claimed exclusive jurisdiction of the matter. That assured I won't be invited back to WSIS anytime soon (or at least by Ms. Cattaui).

It is therefore extraordinary now that people purporting to speak for WIPO would say that WIPO too is not to consider issues about the public domain. Neither at WIPO, nor at WSIS, nor apparently anywhere. Except among us commies I guess. (Fellow travelers, for our next secret communist meeting, be sure to read the latest great work by some of the most prominent IP commies out there. Linked here.)

The battle against software patents is coming to a head in the EU. (Not that much of the support for software patents has come from the head.) As these articles (News.com, TheRegister, and Slashdot) describe, the battle has become quite heated, with the side of right not expected to prevail.

A large number of F/OSS-related sites are shutting down because of the move. See, e.g., Gimp. And those amazing Europeans are actually marching in the streets about this threat to the freedom to innovate.

That there is a threat would be more obvious to WIPO and the US government if it didn't spend its efforts working to remain ignorant about the importance of balance in intellectual property law. But I understand, they're very busy, those regulating sorts. So here's perhaps the most concise and compelling account of just why software patents will harm new innovators (that's you Europe) and benefit old innovators (that's America), written in 1991 by Mr. Gates:

"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 stand-still 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." Fred Warshofsky, The Patent Wars 170-71 (NY: Wiley 1994).

Perhaps the F/OSS sites should take more advantage of this unique opportunity for them to quote the wisdom of Mr. Gates.

Krugman is a favorite regular read. His latest is a favorite among favorites.

Apparently, the FERC has now settled with "energy companies accused of manipulating markets during the California energy crisis." Through various price manipulations, those companies cost Californians $8.9 billion -- not including the extraordinarily high prices we now face because of long-term contracts signed at the height of the crisis.

The FERC has now imposed a $1 million fine on the energy companies. As Krugman calculates, though they imposed costs of at least $250 on each Californian by their games, they're required to pay 3 cents.

$1 million for $9 billion in real harm.

Let's put this in some perspective.

Jesse Jordan (the RPI student who ran a search engine and was sued by the RIAA) was, the RIAA claims, liable for $15,000,000 in damages. When you add up the damages claimed against all four of these students (who again had built search engines), the RIAA was asking, on some estimates, for $100 billion dollars. That's because, under our law as interpreted by the RIAA, downloading one song makes you liable for $150,000. Or, on the RIAA's view of the law, cheaper to defraud Californian's of $9 billion than download 10 songs from a p2p server.

"Oh," you say, "but that's unfair. You're comparing actual fines imposed to the maximum fines that could be imposed."

Ok, so let's compare actual to actual.

In January, 2000, MP3.com launched a service called my.mp3.com. Using software provided by MP3.com, a user would sign into an account and then insert into her computer a CD. The software would identify the CD, and then give the user access to that content. So, for example, if you inserted a CD by Jill Sobule, then wherever you were � at work, or at home � you could get access to that music once you signed into your account. The system was therefore a kind of music-lockbox.

No doubt some could use this system to illegally copy content. But that opportunity existed with or without MP3.com. The aim of the my.mp3.com service was to give users access to their own content, and as a byproduct, by seeing the content you already owned, discover the kind of content the users liked.

To make this system function, however, MP3.COM needed to copy 50,000 CDs to a server. (In principle, it could have been the user who uploaded the music, but that would have taken a great deal of time, and would have produced a product of question-able quality.) It therefore purchased 50,000 CD from a store, and started the process of making copies of those CDs. Again, it would not serve the content from those copies to anyone except those who authenticated that they had a copy of the CD they wanted to access. So while this was 50,000 copies, it was 50,000 copies directed at giving customers something they had already bought.

Nine days after MP3.com launched its service, the five major labels, headed by the RIAA, brought a lawsuit against MP3.com. MP3.com settled with four of the five. Nine months later, a federal judge found MP3.com to have been guilty of willful infringement with respect to the fifth. The judge imposed a fine against MP3.com of $118,000,000. MP3.com then settled with the remaining plaintiff, Vivendi Universal, paying over $54 million.

So defraud Californians of $9 billion, pay $1 million. But develop a new technology to make it easier for people to get access to music that they have presumptively purchased: pay more than $54 million.

Such are the values of our time.

Having failed in the Congress, the content industry is now pushing the FCC to take action to mandate the broadcast flag. This bit of government regulated code is a mistake. By imposing a requirement (effectively) in the middle of the network, the broadcast flag will break all sorts of innovative new applications. By permitting only "tamper-resistant" technologies, it will effectively ban all sorts of free and open source projects. Thus, two of the key parts in the history of internet innovation -- end-to-end and free and open source software -- are regulated away by this.

And for what? There has been no showing that this technology mandate is needed. The movie industry (unlike the recording industry) has deployed great new technology (the DVD) that effectively competes with free. (Anyway, apparently according to Jack Valenti the real pirates of the movie industry are members of the Academy.) This is a classic example of regulate first, and ask questions later, and a perfect example of how not to regulate the internet.

Please follow here and do something about this mess. To read more, check out Jonathan Krim's piece in the Post.

Now the FTC too is worried about bad patents.

Roy Mark's got a great piece in InternetNews: Spam Bill is a Turkey. The story of why spam fighting (and free culture fighter) congresswoman Zoe Lofgren voted against this totally useless legislation.

From Michael Geist's BNA's Internet News: This Taipei Times article describes a "warning" from the International Federation of Phonographic Industry to "existing investors and potential investors to seriously consider their investments in unauthorized peer-to-peer network operators." Nice of them to help.

I've got a column in the January Wired (not yet online) attacking farm subsidies. Actually, more precisely, attacking farm subsidies when, simultaneously, in the name of "free trade" we demand developing nations protect our IP. (You must protect the market for our Mickey, while we destroy the market for your wheat.) This has excited a flurry of farmers to write angry letters about national security (yep, bin-Laden is terrified by cheap wheat). Indeed, one "film maker - farmer" wrote to say it was more important to protect farmers than IP.

Anyway, when the article appears online, it won't include an error that is in the printed edition. I was drafting between attacking the policies of industrialized nations in general, and America in particular, and the statistics got mixed in the end. It is the industrialized nations together that spend $300 billion a year on farm subsidies -- six times the aid to developing nations. Obviously, the US doesn't spend that much alone.

I apologize for that stupid error, which is totally my fault. But I won't apologize for attacking farm subsidies.

From the dissent of this amazing opinion: "They approve an ordinance which literally forces a �Big Brother� style telescreen to look over one�s shoulder while accessing the Internet."

JD's got a nice piece about Australia's caving to US pressure re copyright. The result: Australian film and culture will be harder to spread and preserve; Hollywood will get richer. I hope the voters in Australia are ok with that, because god knows, we Americans need lots of help with our balance of trade debt.

By far the most constant and effective (in these hopeless wars) critic on this has been Matthew Rimmer. Awaiting permission to post his missives to me. Meanwhile, here's a very strongly worded report from "The Age."

So after being battered down again and again, the database bill is back. Congress is again being pressed by IP extremist lobbyists to "solve" the "problem" of "inadequate legal protection" for databases by adding a raft of IP lawyers into the mix.

This is an awful law, and were the attention of good people everywhere not focused upon the many awful things happening in DC, it would be dead on arrival. But unfortunately, it lives. PublicKnowledge is doing its part to stop it. Please do something to help stop it again.

I wrote yesterday about Australia's decision to cave to US pressure on matters copyright. Matt Rimmer has been a valuable correspondent on the issue. With permission, in the extended entry, I include a couple of his missives to me. The story is truly amazing, though there may be some hope. Meanwhile, I think we Americans should write the Australian government to thank them for helping our economy at such a desperate time.

Jamie Knox sent along Iraq's newly amended copyright law (as if THIS was where we needed to worry about rule of law in Iraq). I've just begun going through it, but there are favorite tidbits so far: collections of data can be protected; readings of the Koran are protected; and collections of government documents can be protected. But significantly, the term is life plus 50! More disharmony...

As reported by Ernie, Disney is lobbying to get indecency regulations applied to cable -- yet another example (after the Sonny Bono Act) to use law to protect itself against competition. When your movies flop, and you've driven away the greatest animation company in the world, I guess there's not much strategy left.

This comes to me from a reliable source, though I would very much like it if it were mistaken.

Apparently Microsoft has taken the first steps to filing a criminal defamation action against a Brazilian government official who was quoted criticizing Microsoft in a magazine article. Sergio Amadeu, head of the agency responsible for spreading free software within the Brazilian government, is reported to have accused "the company of a 'drug-dealer practice' for offering the operational system Windows to some governments and cities for digital inclusion programs. 'This is a trojan horse, a form of securing critical mass to continue constraining the country'."

He's also quoted characterizing Microsoft's strategy as a "strategy of fear, uncertainty and doubt."

These statements have apparently earned Mr. Amadeu the right to defend himself in a defamation action. Microsoft characterizes Amadeu's statements as "beyond being absurd and criminal" and as evincing an "excess in freedom of speech and freedom of thought." "Freedom of speech and freedom of thought" is, Microsoft apparently believes, properly prosecuted in Brazil, and so it has brought this first step to prosecute the "felony of defamation" evinced by Amadeu's words.

Such words could not rise to the level of defamation in the United States; I would be surprised if they were defamation in any sane state. But whether they are defamatory in Brazil or not, it is wrong for this company to use the law to silence a critic. In the American tradition, we meet bad speech with more speech, not with more lawyers. We should all teach Microsoft something of our tradition, by meeting its bad speech -- a defamation action against a critic -- with lots more speech criticizing it.

Senator Hatch (who used to understand stuff) has introduced the INDUCE Act, which will criminalize the act of inducing another to commit a copyright violation. This is a brand new theory of copyright liability, which, as this floor statement makes clear, is directed at overturning Sony with respect to p2p.

The proposal alone is troubling enough. But the outrageous part is that there is talk that this massive new layer of federal regulation of technology will happen without hearings -- indeed, that it will be passed in the next weeks.

Whatever the merits of this new regulatory program are (and, imho, there are not many), it should not happen without an opportunity for Congress to consider the full implications of this new regulation. The ramifications of this reach far beyond p2p.

Nicely put.

EFF has mocked-up a complaint against Apple under the pending INDUCE Act.

Word has it that the regulators in Washington are enamored of Professor (in the School of Computing) Hollaar's recent paper, Sony Revisited, and that it is in part responsible for Congress' current infatuation with the Induce Act. Professor Hollaar is a smart guy, and his paper is an interesting and well-researched examination of secondary liability in the context of copyright law. But if Congress thinks this justifies the Induce Act, then there is some deep confusion somewhere. I suspect there are two possible sources for this confusion.

(1) Hollaar discusses the scope of "inducement" liability in the context of patent law. There are some in Congress who seem to think that the Induce Act "merely" carries the same idea to copyright law. This is just a mistake. The scope of the Induce Act as written is far broader than the scope of inducing patent infringement as interpreted. And if "all" Congress wants to do is extend patent inducement to copyright law, then it should amendment the Induce Act to state precisely that. That would be a vast improvement over the existing proposal -- not enough to justify it in my mind, but it would make the harm it will cause much much less significant.

(2) Hollaar discusses the purpose and meaning of the Sony case. While his discussion is technically correct enough (though the idea that copyright is the right to protect a "business model" is really not right at all), imho, the Professor, and in turn, the supporters of the Induce Act, are really missing the point of Sony.

As everybody knows, Sony set the rule that when a new technology has the "potential" to support "substantial noninfringing use" of copyrighted material, the maker of the technology would not face secondary liability for copyright infringement.

But what no one (in Washington, at least) seems to understand is why Sony set that standard. It was not because the Supreme Court is filled with copyright infringers who wanted to encourage copyright infringement. It was instead because the Supreme Court was filled with judges not eager to engage in the complex balancing required to judge whether a technology creates more benefit than harm. As the Court stated:

Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials. Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology.

Why is that a great idea? Because (isn't this obvious to Republicans?) courts are awful, expensive, and slow institutions for judging the economic effect of new technology. Soviet planners with better lighting. And rather than bury innovators in years of litigation before their innovation gets to market, the Sony rule says: let the innovation go, if there is a potential for a substantial noninfringing use, and if Congress wants to regulate it more, then let Congress weigh the benefits of the technology against its costs.

Ignoring this extremely sensible separation of powers principle has already cost Silicon Valley dearly. See, e.g., ReplayTV. ReplayTV is the digital equivalent of the VCR. It does the job more efficiently, and it promised to do some things the VCR couldn't do, too. But under the principle of Sony (innovate first, regulate later), it should plainly have been allowed into the market without intervention by the courts. Yet precisely the opposite happened. Content owners sued ReplayTV. It was dragged into federal litigation for many many months defending its new technology. And before the case could be resolved, the company effectively declared bankruptcy.

Is this the future Senators Hatch and Leahy want for all new technologies that impact copyrighted material? Will every Apple be forced to defend its innovation in a federal court? Will federal judges become the arbiters of good technology? Will technology firms be forced to spend more on lawyers than on R&D?

Whatever the lobbyists say about this bill, this is the single most important fact that we should not forget: It is a lawyer employment act. It will force technologists into court before they get to enter the market place. It will shift responsibility for striking the balance in copyright law from Congress to unelected federal judges.

That's not a bad thing for me, or my kind. I, after all, think the courts have some role here (in setting the limits of copyright), and I, after all, make lawyers for a living. But for an already overregulated Silicon Valley, it is another nail in the coffin by the regulating-obsessed in Washington.

Ernie's beginning a list.

My wife is a housing attorney at Bay Area Legal Aid. Her work keeps mine in perspective. Yesterday, she sent friends the following appeal. Please excuse the interruption of this "free culture" channel for an issue that will determine whether hundreds of thousands of mostly working families will have a roof over their head next month.

On Jul 18, 2004, at 10:53 PM, Bettina Neuefeind wrote:

Click here to read.

Astonishing, and essentially unnoticed, genocide continues. Bipartisan support for us doing something. That could include you. Connect.

That'll teach us for teaching the Chinese about the importance of copyright law. Google has been threatened for using news summaries in its Hong Kong Google News service.

Bruce Ackerman has an interesting piece in the American Prospect about the oath Rumsfeld asked the civilians sworn to review the judgments reaching by the Guantanamo Bay commission: "Does each one of you swear that you will faithfully and impartially perform according to your conscience and the rules applicable to the review filed by a military commission all the duties incumbent upon you as a member of the review panel, so help you God?" "God" is central; the Constitution is forgotten. A metaphor for too much these past few years.

Sorry, for reasons that will be clear, I have to pull this. More, and better, soon.

In September, I reported that Philadelphia was considering funding a WiFi service for the city. Sixty percent of the citizens have no access to broadband. The city elders believe that's no way to enter the 21st century.

But as Public Knowledge now reports, a bill on the Governor's desk would now make it impossible for Philadelphia to offer such a service, because it "competes" with private businesses offering the same service.

So, let's see: If I open a private street light company, selling the photons my lights give off, can Philadelphia offer "free" street lights? Or does the fact that Guards To Go offers services in Philadelphia mean we need to disband the Philly police department?

I am from Pennsylvania. I spent 4 wonderful years in Philadelphia. (Indeed, I was elected Youth Governor in 1979!) If you're connected to that freedom-loving state, please say something to the Governor.

"One of the things that our agency's responsible for doing is protecting the integrity of the economy and our nation's financial systems and obviously trademark infringement does have significant economic implications."

Obviously. Just imagine the spike in GDP produced by the government's efforts to eliminate competition in children's toys. And just in time for Christmas no less.

The LuminousVoid has a report about the arguments in the DC Circuit about the broadcast flag.

So despite the fact that the EU Parliament has rejected software patents for Europe, and despite the fact that there is not a qualified majority of member states supporting it, the EU Council has now endorsed their draft of the "Directive on the Patentability of Computer-Implemented Inventions."

This struggle continues to astonish me. There's no good economic evidence that software patents do more good than harm. That's the reason the US should reconsider its software patent policy.

But why Europe would voluntarily adopt a policy that will only burden its software developers and only benefit US interests is beyond me.

They call it a "democracy" that they're building in Europe. I don't see it. Instead, they have created a government of bureaucrats, more easily captured by special interests than anything in the US.

More from EFF.

You can also add your name to a petition.

The "Progress" and "Freedom" Foundation has called (rightly) for Supreme Court review of the "obviousness" standard in patent law.

I got an email from Bruce Lehman, which was very big of him after I criticized him for his claim that I "seem[] to believe you can have a post-industrial economy without any copyrights."

Anyway, Bruce's email (and to be clear, it was sent not just to me, but to me as a "IIPI Supporter" (which has as much connection to the truth as his statement above)) was proud to announce a new section on the IIPI website called a "Discussion Forum."

The discussion forum was inspired by the "debate surrounding the European Union�s (EU) proposed Directive on Computer Implemented Inventions (CII)." As Bruce writes, "It is important to remember that the patentability of computer implemented inventions, or lack there of, will have a profound effect on European industry and competitiveness." Absolutely right, which is why is it so good that the IIPI has opened a discussion forum on their site so people can contribute to the "discussion" about IIPI's strong support for this software patent initiative.

I encourage all to answer Bruce's call: You can find the "CII Discussion Forum" here. And be sure to spread the word!

Bill Patry has a very depressing account about a "a horrific DMCA et al. suit filed against the Internet Archive."

The BBC is being attacked by UK record companies for giving away public domain recordings of Beethoven. According to the record companies, such offers are "unfair competition." (Thanks, Wallace). Corrected -- sorry for the confusion.

An Australian Court finding liability for linking to copyright-infringing mp3s.

This is an extremely depressing story about the costs of funding drug research the way we currently do. For more info see the author's website.

WIPO's latest destructive regulation: The Broadcasting and Webcasting Treaty. Jamie Boyle nails it.

CPTech has an action page. So too does the EFF.

Michael Geist details the emerging furor about lobbying around copyright in Canada.

The Washington Internet Daily (which apparently is not on the Internet) has a story predicting the Telecom Bill will pass the House this year. The only sticking point seems to be the "controversial" "net neutrality" proposal. Says Howard Waltzman, the committee’s majority chief telecom counsel, and "net neutrality" opponent: “We’re going to rely on the market to regulate these services and not have a heavy hand in government regulation." Waltzman thinks net neutrality regulation would turn "broadband pipes into railroads and regulating them under common carriage." As he explains:

“The reason the Internet has thrived is because it’s existed in an unregulated environment. Regulating... under common carriage would be a complete step backward for the Internet.”

So half right, but wholly wrong. For of course, when the Internet first reached beyond research facilities to the masses, it did so on regulated lines -- telephone lines. Had the telephone companies been free of the "heavy hand" of government regulation, it's quite clear what they would have done -- they would have killed it, just as they did when Paul Baran first proposed the idea in 1964. It was precisely because they were not free to kill it, because the "heavy hand[ed]" regulation required them to act neutrally, that the Internet was able to happen, and then flourish.

So Waltzman's wrong about the Internet's past. But he's certainly right about what a mandated net neutrality requirement would be. It would certainly be a "complete step backward for the Internet" -- back to the time when we were world leaders in Internet penetration, and competition kept prices low and services high. Today, in the world where the duopoly increasingly talks about returning us to the world where innovation is as the network owners says, broadband in the US sucks. We are somewhere between 12th and 19th in the world, depending upon whose scale you use. As the Wall Street Journal reported two months ago, broadband in the US is "slow and expensive." Verizon's entry-level broadband is $14.95 for 786 kbs. That about $20 per megabit. In FRANCE, for $36/m, you get 20 megabits/s -- or about $1.80 per megabit.

How did France get it so good? By following the rules the US passed in 1996, but that telecoms never really followed (and cable companies didn't have to follow): "strict unbundling." That's the same in Japan -- fierce competition induced by "heavy handed" regulation producing a faster, cheaper Internet. Now of course, no one is pushing "open access" anymore. Net neutrality is a thin and light substitute for the strategy that has worked in France and Japan. But it is regulation, no doubt.

So while it is true that we have had both:

(a) common carrier like regulation applied to the Internet, and
(b) basically no effective regulation applied to the Internet

and it is true that we have had both:

(c) fast, fierce competition to provide Internet service and
(d) just about the worst broadband service of the developed world

it is not true that we had (c) when we had (b).

We had (c) when we had (a), and we have (d) now that we have (b).

But in the world where the President has the inherent authority to wiretap telephones, who would be surprised if facts didn't matter much.

Broadband is infrastructure -- like highways, if not railroads. If you rely upon "markets" alone to provide infrastructure, you'll get less of it, and at a higher price. (See, e.g., the United States, today.)

I wrote this piece for the FT about the next war in copyright. If you've not seen AMVs, you should. Look here.

This will be the next big copyright war -- whether this form of noncommercial creativity will be allowed. But there will be a big difference with this war and the last (over p2p filesharing). In the p2p wars, the side that defended innovation free of judicial supervision was right. But when ordinary people heard both sides of the argument, 90% were against us. In this war, the side that will defend these new creators is right. And when ordinary people hear both sides, and more importantly, see the creativity their kids are capable of, 90% will be with us.

I saw this first hand in the eyes of a father. From the FT piece:

But to those building the Read-Write internet, economics is not what matters. Nor is it what matters to their parents. After a talk in which I presented some AMV work, a father said to me: “I don’t think you really realise just how important this is. My kid couldn’t get into college till we sent them his AMVs. Now he’s a freshman at a university he never dreamed he could attend.”

These are creators, too. Their creativity harms no one. It is the heart of a whole new genre of creativity -- not just with anime, but will all sorts of culture. If, that is, it is allowed.

Update: A relevant City of Heroes video on in-game IP.

Denise Howell has a great post about the Washington Post's plan to run a mash-up. According to the terms and conditions, as a condition of participating, the artists must agree to "grant and assign all right, title and interest in the Recording to" the Washington Post.

Good for the Washington Post -- mash-ups are an important and valuable form of creativity encouraged (and democratized) by digital technology. But I believe that the artists who create them deserve to own and hold the copyright to their new creative work. And in my view, any self-respecting artist should refuse to participate in any sharecropping mash-up. You did the work. You should own the rights to the work you did.

So as noted here before, Britain is considering extending its copyright term for recordings from 50 years to 95 years -- including both existing recordings and recordings in the future. (Remember, we increased our copyright term to "harmonize" with the Europeans; now the Europeans are increasing their copyright terms to "harmonize" with the US. Will this cycle end? Of course not.)

The ippr just released a very smart report about IP issues generally. It identifies well the errors in this pattern of extension. (The report is not free for downloading (a problem it didn't note), but an executive summary is here.) And a new activist group in Britain, the UK Open Rights Group will soon release a short policy paper.

But the real problem with this debate is that the proponents for term extension are (1) sexy media figures who (2) only discuss the issue in well choreographed events that allow no real opposition to their views to be heard, while (3) the press never adequately covers events where the issue is properly, and adequately, addressed.

Exhibit one in support of the above: This piece by a favorite of this page, Andy Orlowski (remember his really nasty piece about my representing Hardwicke in the boychoir case, ending with: "Lessig has shown an ability to clutch defeat from the jaws of victory before." No followup by Andy after the verdict.) Orlowski usually gets media issues right. But this piece is full of the most obvious errors. (E.g., he refers to "the estimates of economic Armageddon that term extenders propose - which may be £143m over 10 years, according to PriceWaterhouseCooper," never pausing to actually analyze what this "Armageddon" is: The argument is that Britain hurts because a £143m tax is not imposed on the British people in order to benefit the likes of Sir Cliff. Talk about trickle down economics.)

But reporters just to report what they see. So I take it Orlowski didn't see the full story. No surprise, since as he mentioned, the "panel discussing the issue was loaded with advocates for extending copyright terms, and only one dissenter." Ah yes, Soviet style public policy discussion, again itself not remarked in Orlowski's article.

The sexy will never stoop to debate this issue in a fair and balanced context so long as they get away with "debating" it in the sort of contexts they do. And they get away with it only so long as the press and politicians permit them to. So let's let this permitting stop: Britain should demand a debate about these issues in a context in which both sides get a real and balanced opportunity to present the views.

(Meanwhile, don't miss Jonathan Zittrain's presentation at the Open Rights Group "Release the Music" event on November 13. Details here and here.)

I'm eager that an alternative get pushed into this debate. As mentioned before, MP Don Foster has suggested terms should be extended only for those who ask. For works whose copyright owners don't ask, the copyright would pass into the public domain. I made a similar proposal to the Gowers Commission. It would be fantastic if Britain took the lead in this obvious compromise to an obviously mistaken policy -- term extension for existing works.

Meanwhile, as a demonstration of the value of the public domain, if you're not in the US, you can get access to this fantastic collection of 1500 LPs of classical music, in the public domain in Europe, but not in the US, digitized and made available by the EuropeanArchive. Don't count on access to this anytime soon, United States: Nothing published will enter the public domain in the US through the expiration of a copyright term until 2019.

"Radical" changes in Washington always have this Charlie Brown/Lucy-like character (remember Lucy holding the football?): it doesn't take long before you realize how little really ever changes in DC. The latest example is the Dems and IP issues as they affect the Net. Message to the Net from the newly Democratic House? Go to hell.

As everyone knows, one issue critical to those who are making the Net interesting (for politics at least) is IP reform. Not "reform" in the sense of the last decade (e.g., Sonny Bono Copyright Term Extension Act, DMCA, NET Act, etc.), but real reform designed to make IP laws work sensibly in the digital age. Real reform -- not the piddly full-employment-act-for-lawyers reform proposed by the Copyright Office for "orphan works," or the puny reform suggested for digital libraries. Instead, reform that tries to fit the legitimate objectives of copyright -- to assure that artists have the incentives they need to create great new work -- into the contours of digital technology.

To craft that reform would require real work. I don't think anyone has a clear picture of what would be best yet. But what is clear is that the war on technology of the last decade must come to an end. And the efforts by content holders to leverage their power over rights they can't even prove they own (see, e.g., the Google Book Search battle) into control over the architecture of the net must be stopped. No one should defend "piracy." But no one should believe that the way the law currently defines "piracy" makes any sense at all.

So is there any hope for such reform from the Democrats? Word from Washington so far: Fat chance. As reported in the LA Times two weeks ago (registration required but hey, it's LA), the crucial House IP subcommittee will be chaired by Hollywood Howard (Berman) -- among the most extreme of the IP warriors. It is this committee that largely determines what reform Congress considers. It is the Chairman who picks what voices get heard. And while Berman is a brilliant man -- whose brilliance could really have been used in the problems facing the mid-east -- his brilliance has not yet been directed towards working out the problems of IP and the Net with any view beyond the narrowest of special interests.

This is like making a congressman from Detroit head of a Automobile Safety sub-committee, or a senator from Texas head of a Global Warming sub-committee. Are you kidding, Dems? The choice signals clearly the party's view about the issues, and its view of the "solution": more of the same. This war -- no more successful than President Bush's war -- will continue.

No doubt, there are Net issues beyond copyright -- surveillance, net neutrality, etc. But I suggest this choice is an important signal about this party (and I'm afraid, any party). I once asked a senior staffer of a brilliant Senator why the Senator didn't take a stronger position in favor of Net Neutrality. "No Senator remains a Senator opposing an industry with that much money" was his answer.

And so too here. The Dems have looked at the potential "return" from the activists on the Net. They've considered the kids being sued by the industry (including the kids running MySpace, and maybe soon, YouTube), and the kids creating amazing new (but presumptively illegal) mashups and remixes, and they have compared that value to the party with the value promised by Hollywood. Result: the 20th Century continues to rule.

Dems to the Net: "Thanks for the blogs. And please continue to get outraged by MoveOn messages. But don't think for a second we're interested in hearing anything beyond the charming wisdom of Jack Valenti. We appreciate your support. We appreciate your money. But come on -- you're all criminals. Don't expect your criminal ways to be taken seriously by an institution as respected as the US Congress."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

v.

Ok, so just about 10 years after the content industry got Congress to adopt one of the most sweeping changes in American copyright law (aka, the DMCA), the content industry has decided that it doesn't like one part of that law -- the Safe Harbor Provision that protects sites such as YouTube. But rather than go to Congress to get them to change the law, the content industry, knowing Congress would not change the law, turns to its new best friend -- the common law of copyright, as articulated by the Supreme Court. See, e.g., Grokster. Why burden Congress with the hassle of law making when you've got a Supreme Court eager to jump in and legislate? At least, that is, when there's no Constitutional issue at stake. When the Constitution's at stake, then it is a matter for -- you guessed it -- Congress. See, e.g., Eldred v. Ashcroft.

Note Count IV in the complaint - "Inducement of Copyright Infringement" - aka, the monster Grokster created.

This case -- if it is really intended as a law suit and not a move in a bargaining game -- should be decided on the meaning of s512(c). The question will be whether YouTube has the "ability to control" uploads before they are identified as infringing. Viacom complains that YouTube shifts to it the burden of identifying infringing content. Not true. The DMCA does. Until at least Congress amends it, or the Supreme Court adds some new common law of copyright to the statute books.

So when I was talking to others about the petition to the RNC/DNC, I was frankly hesitant just because it seemed so obvious. Why would any network resist? Then I read MSNBC's rules for the use of its recent debate, and realized (once again) just how clueless I am.

As reported by Jeff Jarviz at BuzzMachine (and cross posted at Prezvid), here's MSNBC's regulation of the use of video of the Democratic debate:

USAGE RULES FOR USE OF AUDIO OR VIDEO OF MSNBC MATERIAL RULES FOR “THE SOUTH CAROLINA DEMOCRATIC CANDIDATES DEBATE” FROM MSNBC:

(The following rules apply to all media organizations that are not part of NBC)

News organizations, including radio, network television, cable television and local television may use excerpts of “The South Carolina Democratic Candidates Debate” subject to the following restrictions (internet use is not permitted):

1. An unobstructed onscreen credit “MSNBC” must appear during each debate excerpt and remain on screen for the entire excerpt.

2. Each debate excerpt must be introduced with an audio credit to MSNBC.

3. No excerpt may air in any medium until the live debate concludes at 8:30 pm ET.

4. No more than a combined total of 2 minutes of excerpts may be chosen for use during the period from the end of the live debate (8:30 pm ET) until 1:00 am ET on Friday, April 27. After 1:00 am ET, Friday, April 27, a total of 10 minutes may be selected (including any excerpts aired before 1:00AM). The selected excerpts may air as often as desired but the total of excerpts chosen may not exceed the limits outlined.

5. No excerpts may be aired after 8:30 pm on Saturday, May 26th. Excerpts may not be archived. Any further use of excerpts is by express permission of MSNBC only.

6. All debate excerpts must be taped directly from MSNBC’s cablecast or obtained directly from MSNBC and may not be obtained from other sources, such as satellite or other forms of transmission. No portions of the live event not aired by MSNBC may be used.

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This is ridiculous. I'm grateful to everyone who wrote to RNC/DNC. I've spoken to the DNC. I've not yet been able to get the RNC to return a telephone call.

But this issue should move beyond the parties to the candidates. No candidate should agree to be a part of a debate broadcast by an organization that purports to exercise this type of control over the video of the debate. No candidate, that is, that understands this century.

A research assistant, Sina Kian, observes:

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

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

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

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

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.

The anger and activism at a rule in New Zealand requiring Internet service be terminated upon a mere accusation of copyright infringement is growing.

Herein brews perhaps the first important battle of reform for this President. I have long thought the President should resign his membership in the Democratic Party -- not because he doesn't or shouldn't share the values of the Democratic Party, but because it is time we recognize we need a President above either partisanship (which got us the "Contract with America") or bipartisanship (which got us the Iraq War). But Hoyer's behavior here makes the point most starkly.

Earmarks are a cancer: Not because they consume a large part of the budget -- they don't; not because we shouldn't be spending money -- we should. But because they feed the system of corruption that is the way Washington works. They are the cornerstone of a system feeding the worst of the lobbying mafia (another plug here for So Damn Much Money), which itself is the cornerstone of K St. capitalism. It was a mistake for Obama not to join McCain in targeting them during the campaign. It is a fantastic thing that he is beginning to target them now.

Cancers can be benign or malignant. This cancer is malignant when it feeds K St. capitalism. It is benign when it is simply a locally informed direction to how the government's money (aka, the people's money) should be spent.

And apropo of the benign form of this cancer: I've agreed to help Congresswoman Jackie Speier with an experiment for earmark reform. (Decidedly and clearly progressive) Congresswoman Speier voted against the appropriations bill because of the earmarks in the bill. But as reported in the SF Chronicle:

Speier is now trying a novel experiment: She's put together a citizen's oversight panel to recommend projects for federal funding, chaired by Stanford law professor Lawrence Lessig, a critic of earmarks, and including local elected, business and labor leaders. If the model works, she may offer legislation to expand it nationally.

The panel will meet in 3 or 4 public hearings over the next month of so to review earmark proposals. We will then report our recommendations back to her.

The citizen panel idea is completely Speier's. It is a brilliant idea with enormous potential. More on the potential soon.