Lessig

I've been hiding for the last few weeks trying to finish the reply brief in the Eldred case. (Check out the briefs on the other side. My favorite is the RIAA's, which begins "The RIAA and its members are dedicated defenders of the First Amendment and vigorously oppose government-sponsored censorship in all its forms." That's apparently the mini-me version of the RIAA. Also check out Bumperactive.com which is giving away free (as in beer) "Free the Mouse" bumperstickers. )

But today I started getting a bunch of frantic emails from people telling me that I needed to respond to Dave Winer. Dave's hopping mad. Apparently, when I asked in my OSCON talk, "What have you done?"and then said "We've done nothing," Dave thought I was literally saying he, Dave, has done nothing. He didn't take it well.

Hey, Dave, peace. Of course I don't mean that you've, literally, done nothing. Obviously and of course, you've done great things for the movement. Nor when I criticized the copyright system was I saying anything about you. (Obviously lots of people use copyright to spread knowledge, rather than hide it. Copyleft is still copyright. And I am, as my writing should make clear, pro-copyright.)

When I said at OSCON that "We've done nothing yet," what I meant (and I thought this was obvious) is that we've done nothing politically yet. We have yet to build a political movement to resist those who would use law to kill what you, and others, built when you, and others, built the net. That claim I still stand behind. There is no political movement that has punished, the way democracies punish, the likes of Berman, et al. And there's no political movement yet that adequately rewards the likes of Boucher, Cannon, and Hank Perritt.

You say there "will" be. Great. Here's hoping. But I was talking about what there is -- now, when the worst legislation we've seen so far is being bounced around DC like it's apple pie. Right now we have a culture where the most creative and important builders of freedom in the 21st century have zero political savvy and (so far) zero political effect. Part of the reason for this is good sense: obviously, your talents are for building the technical infrastructure for freedom that we call the Net. But part of the reason is the continuing reign of Declan-like banalities--about how you don't need to waste time getting democracies to protect freedom, that politics can be left to people in dc, that geeks should worry about west coast code not east coast code, etc. (My favorite line from the Declan missive was: "Would you rather see Ian Clarke start a certain-to-be-ignored postcard campaign instead of inventing such a beautifully disruptive technology as Freenet?" Gee, I guess not. And I guess on that reasoning, Ian should also stop going to movies, because if we've got to choose between the next great "beautifully disruptive technology" and movies, well...)

My point is that if this community does not begin to spend at least as much time as it spends watching Hollywood movies fighting Hollywood, or to spend at least as much money as it gives DSL providers on those who fight broad based control, then this extraordinary space that you, Dave, (and I trust you'll agree, some others as well) built will be taken away. Not by superior blogs, and not by witty /. postings. But in the old-fashioned way: through regulators who have been bent by the forces of those who can and do buy Washington.

You say I should stop complaining, and open up a blog. (Man. I knew you were still angry with me that I didn't take you up on your kind offer for free blog space at userland. I'm sorry, Dave.). I say that in addition to blogging, and coding and whatever, we've got to do something that matters to these people who think a blog is a typo. You, or we, or someone has got to get this community to deliver a different kind of message. One that east coast coders can read; one that says: we won't let the freedom we (actually, you, certainly not me) built be regulated away.

How? Here's the simplest thing we could do: identify 2 luddite members of Congress -- one Republican and one Democrat. Organize and defeat them in November. If Congress saw bad ideas cost seats, they'd begin to do something about their bad ideas.

It's one thing to sit at your screen and post rude-ities about how you'll throw them (and me) out (out of where, Dave? userland? Oh no!), and how the revolution will come, and so on. You're right: I'm not old enough to remember the "revolution" of the 60s; just old enough to remember that Nixon was president when the 60s ended. In any case, the revolution will be here only when it leaves your screen, and registers and votes. And about that, I still say "we've done nothing"-- still.

Back to the wisdom of the RIAA ...

Alex Golub's got a scathing review of my OSCON talk. Completely right. This is why I'm moving on from this, quickly. But he also has at the same link a really great song.

So I've never received an "F" before, so don't blame me for appealing c|Net's grade.

The Future of Ideas has been translated into Japanese. As sometimes happens, the translation improves the book. Not only is the title better ("Commons", which the American publisher vetoed), but it also has a great and revealing introduction by the translator, Hiroo Yamagata. As always, the translator reveals as much about the work he translates as the world he translates into.

Donna "Copyfight" Wentworth is blogging Harvard Berkman Center's iLaw program here in Brazil. The Berkman Center does this every six months or so, at least once a year in a very interesting place -- and this will qualify as the most amazing place for many years. Yesterday, John Perry Barlow and Brazil's Minister of Culture, Gilberto Gil, debated the economics of culture. Barlow is in great form, and Gil is an extraordinary speaker. Most extraordinary was to hear him quote Jefferson and Barlow in Portuguese.

So we're trying to focus on Internet Law, but the truth is, it is impossible to be here, as an American, without the war raining down everywhere. Barlow sits next to me browsing war webpages. Student's won't stop asking. And I, ever wanting to believe, remain stumped.

Then there are minor wars: I've been asked not to praise MIT in the way I did. The reality of this world: one can do good, but others can't talk about it.

Two random questions I'd be grateful for a reply on. Reply to this disposable email address:

(1) Has anyone heard from Andrew Orlowski -- via email -- in the past six weeks?

(2) There's an ad running on some network with two guys at a bar talking about drug legalization. It is an anti-legalization ad. I'd be grateful for any help in tracking it down.

My wife is T+7. I'm going radio silent while we see this amazing process through. Argue well.

Sorry about the ambiguity. Willem Dakota Neuefeind Lessig was born yesterday.

I've been guest blogging at GlennReynolds.com, while failing to meet my obligations here (and to my inbox -- which after a week off from teaching, I was able to clear (except for 200 replies to comments on my writing I need to respond to). I apologize for the absence. My guest blogging is now ended.

Seth writes, "did Richard Bennett kill the lessig blog?" No, not really. Totally insane overcommitments knocked it out for a time. But classes ended today, and life returns tomorrow. Starting tomorrow for the balance of the week, Siva Vaidhyanathan will be guest blooging about his new book, The Anarchist in the Library. I'll be caught up by the weekend, and back with good news next week. Sorry for the delay.

I will be on a flight to Phoenix on Wednesday morning. So I will not blog much early. In the evening I will be addressing a great audience, the Off-Campus Library Services Conference. Librarians are the best audiences.

Thank you, everybody, for reading all my posts this week. And thanks most of all to our host, Lawrence Lessig, for letting me reach a bigger and better readership this week. It was fun. I got some great and helpful feedback.

As of Saturday, I will be back on my own site, Sivacracy.net. It will be good to be home again.

Please watch Sivacracy.net next week. I might be guest blogging on another major blog. I will announce my plans there. I am working on the details now. Meanwhile, I have to travel to Vancouver for another gig early next week.

Also next week, please check out my regular column Remote Control on openDemocracy.net.

Oh, and if you are in or near New York City, please come join me and some of my friends at the Barnes and Noble store on 5th Avenue at 18th St. on Wednesday, May 19. The reading/signing of The Anarchist in the Library begins at 6:30 p.m. It should be fun.

Ok. Back to Lessig Blog.

Peace, Out.

Siva

My wife, my kid and I are disappearing in August to a place that has no Internet, and only a satellite phone. In my absence, Professor Tim Wu from Virginia will be running Lessig Blog. Tim and I have worked together on "net neutrality" issues, and if we can steal him from Virginia, much more in the future.

In addition to Tim, August will also feature two special guests. During the week of August 9, Congressman Rick Boucher will guest blog. And then during the week of August 23, Judge Richard Posner will guest blog.

As when John Edwards (1, 2, 3, 4), Howard Dean (1, 2, 3, 4, 5), and Dennis Kucinich (1, 2, 3, 4, 5) were guest bloggers, I've advised Congressman Boucher and Judge Posner that my practice is not to block trolls, but that the practice of bloggers everywhere is not to feed trolls. I'd be grateful if members of this community could help keep the conversation constructive.

Thanks to Congressman Boucher and Judge Posner, and to Tim Wu.

"A lot of people would like to think of whales as philosopher-poets swimming around the oceans thinking deep thoughts, and that is not true," said Dr. Roger Payne. "But for some reason, people are deeply, deeply impressed by these animals. It may be their size, and grace has something to do with it. But there really is an air of mystery about them."

This is the end of my stewardship of the Lessig Blog. It has been a pleasure to meet many of you and I thank you for reading the web-log in Larry's absence.

For the rest of the year you can find me either on the 7th floor of Columbia Law School, where I am a visiting professor, or back in Charlottesville/Washington DC. My email address can easily be found using a google search, which is probably why I get so much junk mail. I also have a lousy web site which stores much of my written work and other information.

Our next guest is Richard Posner. Mr. Posner works for the federal government, and enjoys writing, oral argument, and demolishing fields of study. He is fond of animals of most stripes and once owned a horse named "King." Mr. Posner's favorite film is the critically-maligned comedy Eight Heads in a Duffel Bag. He lives in Chicago.

Please join me in welcoming our guest to what promises to be a very interesting week.

Thanks to Congressman Boucher, Judge Posner and Professor Wu for keeping the blog alive in August. We're putting together a page to make it easy to link to guest blogger threads. I was not surprised to see how great all three as bloggers are -- perhaps this will inspire them into blogspace. I'll follow up in the next weeks with some comments on each.

Fond memories of another life.

Lots of speculation and fantastic praise about the West Wing gig. It was a hoot to watch. But in two seconds (I'm late for a meeting) let me put this in perspective.

The story is based (loosely) upon a true story. I was involved in the drafting of one early version of the Georgian constitution. But the story ended up in the West Wing because I told the story to my students in Constitutional Law at Harvard, and a current writer for the West Wing was in that class.

And so is "fame" made: My story is on the West Wing because I was at Harvard -- not because the brilliance of my intervention had been noted and reviewed, but because I was teaching talented kids who would prove to be important. Indeed, so has the most important of my "fame" been made: Did Justice Jackson pick me to be his special master because he had determined I was the perfect mix of Holmes and Ed Felten? No, I was picked because I was a Harvard Law Professor teaching the law of cyberspace. Remember: So is "fame" made.

Two things about the episode did, however, make me very happy. First, that it showed that at least some law students escape the trap that the top law schools have created -- the path to a tedious and unrewarding practice that few seem capable of avoiding. And second, that it captured beautifully the single most important thing that I learned from my years working on "constitutionalism" in Eastern Europe: That 90% of the challenge is to build a culture that respects the rule of law, and that practices it. A document doesn't build that culture. And no one has a formula -- either for building it, or preserving it.

Certainly not a law professor.

I flew my 1,000,000th mile on United. They didn't even notice.

My son has an imagination. At 20 months, he spent an hour playing a game in which his stuffed boxer (as in the dog) played with his plastic spider. The spider would ride the dog. The dog would sniff the spider. And all the time my son was split with laughter. (more in the extended entry below)

To everyone who has written about my ghosts, thank you. I am always stunned by the warmth of this community (though of course, stunned sometimes by the opposite as well). I had promised myself I would not read the piece, but the comments have forced me to break that promise. John is an amazing writer, and the piece has a rawness that is hard, but perhaps appropriate. (E.g., I rarely swear, though you wouldn't get that impression from the piece.). Three comments below, but first a plea: that we drop the H-word, and B-word from commentary about this. This is an important social issue because of how ordinary it is in fact; and we need it to be understood to be ordinary, so as to respond in ways that can check, and prevent it.

Update: hero, brave

{Update II: Please see this follow-up.

(more below)

The comments to Living With Ghosts have done more for me than anything could. "Thank you" is too weak, but thank you.

Many have written asking, "What can I do?" Here's a map for anyone interested.

As the story recounts, we're waiting for a decision from the New Jersey Supreme Court about whether New Jersey's law, which immunizes charities from "negligence," is subject, as the trial court said, to a "judicial gloss," making the statute "absolute," and therefore excusing the organization:

"from liability for any degree of tortuous conduct, no matter how flagrant that conduct may be. Accordingly, plaintiffs’ contentions that employees and agents of the American Boychoir School acted willfully, wantonly, recklessly, indifferently – even criminally – do not eviscerate the School’s legal protections."

There is -- and there should be -- nothing that can be done about that case while the Court is considering it.

But New Jersey has a legislature as well as a Supreme Court. And the real hero in this case -- John Hardwicke, who has given everything he has not just to his case, but to changing the law in New Jersey -- has, with others, started a movement to get New Jersey to FixTheLaw in a part that is unrelated to the case before the Supreme Court.

Even if we win our case, the law in New Jersey would still immunize a charitable institution from "negligence" in the hiring of a teacher. That means if a school hires a teacher without taking any steps to verify the teacher's past -- for example, asking why the teacher was fired from his last job -- the school is immune from liability.

Assemblymen Cohen, Chiappone, and Bateman have introduced a bill to remove that immunity, so that a school would have the same duty that all of us have -- to take reasonable steps to avoid foreseeable harm, at least if that harm is sex abuse. Yet this bill has been stalled by the very powerful lobbying of some -- actually, primarily, one:

Leaders from the Catholic Church have opposed the change. Some of the same leaders, representing the "Catholic Conference of Bishops," also filed a brief in our case asking the Court to affirm the "absolute" immunity -- even for intentional acts -- that the trial court had found.

It is completely beyond me why the Church spends its resources to make children less safe. No doubt, the Church has its own issues about liability. But is money really a church's only concern? Do its values really say that it is more important to avoid its own liability than to protect children in the future? Or more accurately -- that it is right to protect its assets by making children in the future less safe?

In any case, there are more voices in New Jersey than this one. I've hesitated before about the appropriateness of noncitizens addressing New Jersey's issues, but that may just be prudishness. And anyway, I assume the "Catholic Conference of Bishops" is not located in Trenton.

So: Hardwicke has a comprehensive site with links to contact legislators, and to contribute. If you are looking for something to do, I'd be grateful if you followed those leads. Or if you would lead others to them. Or, if you're a Catholic, I'd be grateful if you would follow your own leads to the conscience of your church.

I am home after just about a month on the road, and about to leave to pick my family up at the airport. Realizing last month that this would be a time when I would spend little time here, I asked two friends who are publishing a new book to guest blog for the first week of June. Starting tomorrow, Ian Ayres and Jennifer Brown will be discussing their book, Straightforward : How to Mobilize Heterosexual Support for Gay Rights. I've not read the book, but I've been talking to both of them about these issues since I was a visiting professor at Yale. These are two extraordinary authors, and the debate is certain to be more interesting than the usual stuff on this blog. (Yet another opportunity to see a surprisingly refreshing facet of the three blind mice).

So excuse my absence. I'll be back on the 8th.

Thanks to Ian and Jennifer for the guest blogging. This was different from the standard Lessig Blog stuff, but I've been a believer in Cass Sunstein's concern about the Daily Me since we spoke about it almost 10 years ago. So I'm happy to mix your reading up a bit. (Don't worry -- just a bit). The issues of this last week are important issues for all of us to talk about. It is the great weakness of liberal politics that too much of the battle is waged in courts. Blogs are to be the space of public discussion of matters important to the democracy (as well as a bunch of other fun things as well). So I am grateful for the conversation (and especially for the break).

So as I've mentioned before, the one promise I keep to my family is a month away, sans Internet, each year since my kid was born. This is year two. The month (or so) begins today. But I've lined up an incredible group to blog in my absence.

This weeks is Cass Sunstein. Cass is certainly the most influential law professor of our time (the only rival is Judge Posner, but he's currently a judge (as you might have guessed)). In 2001, Cass published Republic.com, a brilliant if dark story about the costs of digital culture. Cass is in the first stages of a new book with the other side of the story -- the good in digital community. I thought he could see something of that from the mix of sorts who live here.

Then beginning July 25, the kids from freeculture.org will blog for a week about the Free Culture Movement, and what students can do to advance it. As I've explained again and again, this is a movement begun far from my influence. But I am a strong supporter, and am honored they would spend some time here (during summer vacation, no less!).

Then for two weeks, beginning August 1, the extraordinary Jimbo Wales, founder of Wikipedia will have two weeks on this page. (He's staying in my house with his family while I'm gone. You've heard about the high rents in San Francisco.) Jimbo has a project to figure out what things should be "free." I suggested this might be a great place to explore that.

Finally, for the surprising close, beginning August 15, Hilary Rosen, former Chief Executive of the RIAA will visit this page. She has of course been a visitor in a different sense from the beginning of this page. I'm honored that she would spend sometime understanding and explaining here.

I'm sorry to be gone for such a long period of time. But with this lineup in my stead, you shouldn't be. Thanks to these guests. Please be decent, however direct. And see you on the other side of a month repairing the bonds that distance has created.

So the year resumes. Thanks to the guest bloggers -- Cass Sunstein, the Free Culture Movement, Jimmy Wales, and Hilary Rosen. And thanks to all who've written worried about my silence, or asking for my return. I hadn't realized how long it would take to dig out from my time away. I'm almost there.

I've gotten a bunch of emails recently from people asking whether the NJ Supreme Court has ruled in the Boychoir case. (See Living with Ghosts). The matter has now returned to the blogosphere in an extensive piece by a sympathetic writer.

The answer is no. Though we argued the case almost a year ago (11/29), there's no word from the Court. I am very surprised at the delay -- indeed, a bit worried the delay is in part because of the New York Magazine article. I feel so stupid that I didn't get a commitment from them not to publish the article before the case was decided. When they told me when they expected it would run, it was months beyond the normal time it take the NJ Supreme Court to decide cases. Anyway, bottom line -- no word yet.

So it has been more than a year since the argument in Hardwicke. John Hardwicke continues to work extremely hard to get New Jersey to protect its children. He's asked people to write the New Jersey legislature to get them to consider one important bit of progress, Assembly Bill 2512.

E-mail the General Assembly

I've created a wiki for work critical of my own work. The aim is to build a text that would complement my own work. I'd be grateful for any help people could provide. Think of the entries as essentially "But see" c/sites.

The wiki is here.

Since my kid was born, we've tried to have a month alone off the grid. That starts this year in 6 hours. I have not asked anyone to guest blog while I'm gone, so this space will be quiet. There are a couple times when I might make a surprise return (they're all preprogrammed). But my apologies for the silence otherwise. This year has been an especially burdensome year. We really need this time alone.

So I'm leaving for Berlin for the year Monday. I am on sabbatical, and need to write tons of stuff. I will be changing significantly how I connect (project: privatizing lessig), but one thing I really need to do is to find a web master. I want to do much more in this space, but this space needs some significant reworking. If you're interested and able, please email Lauren Gelman at the Stanford CIS. There's some money to support this, but not much.

So my family and I have arrived at the American Academy in Berlin where I'll be spending the year writing and hiding (mainly). (More on the hiding part later). My 3 year old (as of Thursday!) seems not to have as flexible an internal clock as his dad. This is the first morning he's slept past 2am. I should have polled for tricks for dealing with this in advance.

There's a great line in Gore's movie about how he thinks about the process of making presentations. Each time, he says, he goes through the presentation "removing blocks" -- trying to understand where people aren't understanding what he's saying, and changing it so there is understanding. Sometimes it's not possible, of course -- sometimes there's just disagreement. But sometime disagreement is just misunderstanding.

As I read some of the responses to my post about Web 2.0, I'm beginning to have a Gore moment. I used the word "ethics"; that word is creating a block. Many read that word (reasonably, of course) to suggest I'm trying to impose a moral code on the the Web; distinguish good from bad, right from wrong; a kind of PCism for PCs.

That's a totally reasonably way to read what I wrote. It's not, however, the point of the post. I don't have a moral code to impose on the Web. I was instead describing the elements, as I see them, of a successful Web 2.0 business. My argument is not "do X because it is good"; my post was "do X to keep and spread the success you've had." My claim is not that walled gardens never prosper (see, e.g., AOL). It is that walled gardens wither (see, e.g., AOL), at least in the environment of Web 2.0.

It was clumsy to try to frame that point as a point about ethics. I realize in reading the responses, I hang the normative within "morals"; ethics, in my (private?) language, is about how we (differing depending upon the group) behave. So in that sense, it was how Web 2.0 companies behave, not because god told them to (remember: amoral), but because they believe this is how best to behave.

But there's another set of responses I don't think there's a simple way to answer. There's a certain mindset out there that thinks the way the world was cut up in college is the way the world is. So whatever set of texts you read as a sophomore, somehow they define the nature of world forever. Seared in your brain is the excitement of figuring out the difference between Capitalism and Marxism, or communitarianism vs. libertarianism. And so significant was this moment of education that everything else in life must be ordered according to these sophomore frames.

I don't know the best way to respond to this sort of soul. Obama apparently addresses it in the context of politics, when he comments that the last 3 presidential elections have all been framed in terms of the debates of the 1960s (Vietnam, the sexual revolution, etc.), and the best response to this framing is just to move on.

That's what I wish would happen here. Put your college philosophy books away, and start reading research about what's happening now. Understand it first, then craft the label. Because when you understand what, say, von Hippel is writing about, it has absolutely nothing to do with communism/communalism/communitarianism/commuwhatever-you-want. It's all about how business prosper in a new technological environment. There's a good argument (indeed, great books) skeptical about whether there is a new technological environment. Fair enough. But there are also businesses "democratizing innovation" (free PDF here) not because they're a bunch of communapinkos, and not because they miss the Cultural Revolution.