Lessig

This just in from Gary Murphy. Now we just need some tunes, and then we'll have a movement...

From: Gary Murphy
Subject: I had a little agent

In his OSCON address free culture defender Lawrence Lessig laments that he'd like to write a song to help his cause, but he can't ---

I Had A Little Agent
------------------------
(words by Gary Murphy)

I had a little agent, my agent pleased me.
I fed my agent from the Greenback Tree.
And my little agent did diddily-squat
did diddily did diddily did diddily-squat

I had some musicians, my musicians pleased me.
I fed my musicians from the Greenback Tree.
And my musicians went "like, when'll we get paid man?"
And my little agent did diddily-squat
did diddily did diddily did diddily-squat

I signed up with SOCAN (or BMI or ASCAP or whatever)
and SOCAN signed me,
I fed my SOCAN from the Greenback Tree
And my little SOCAN said [ whining ] "we got so much /overhead/!"
And my musicians went "like, when'll we get paid man?"
And my little agent did diddily-squat
did diddily did diddily did diddily-squat

I got a little venue, my venue pleased me
I paid for my venue from the Greenback Tree.
And my little venue went [ with authority ] "you're too friggin loud"
And my little SOCAN said [ whining ] "we got so much overhead!"
And my musicians went "like, when'll we get paid man?"
And my little agent did diddily-squat
did diddily did diddily did diddily-squat

I found a producer my producer pleased me
I fed my producer from the Greenback Tree
And my little producer said "do you think you could make it more
peppy, and it doesn't always rhyme, and some of your lines are way too long"
And my little venue went [ with authority ] "you're too friggin loud"
And my little SOCAN said [ whining ] "we got so much overhead!"
And my musicians went "like, when'll we get paid man?"
And my little agent did diddily-squat
did diddily did diddily did diddily-squat

I signed with a label and my label pleased me
I fed my label from the Greenback Tree
And my little label said "you're just not moving the units!"
(alt "there's just no interest in that sort of thing anymore")
And my little producer said "do you think you could make it more
peppy, and it doesn't rhyme and some of your lines are way too long"
And my little venue went [ with authority ] "you're too friggin loud"
And my little SOCAN said [ whining ] "we got so much overhead!"
And my musicians went "like, when'll we get paid man?"
And my little agent did diddily-squat
did diddily did diddily did diddily-squat

I cut a little CD and the CD pleased me
I paid for my CD from the Greenback Tree
And my little CD went --- [ dead stop silence ]
And my little label said "you're just not moving the units!"
(alt "there's just no interest in that sort of thing anymore")
And my little producer said "do you think you could make it more
peppy, and it doesn't rhyme and some of your lines are way too long"
And my little venue went [ with authority ] "you're too friggin loud"
And my little SOCAN said [ whining ] "we got so much overhead!"
And my musicians went "like, when'll we get paid man?"
And my little agent did diddily-squat
did diddily did diddily did diddily-squat

I got a little website, my website pleased me
I paid for my website from the Greenback Tree
And our little website goes "MORE M-P-THREES!!!"
And our little CD went --- [ dead stop silence ]
And my little label said "you're just not moving the units!"
(alt "there's just no interest in that sort of thing anymore")
And my little producer said "do you think you could make it more
peppy, and it doesn't rhyme and some of your lines are way too long"
And my little venue went [ with authority ] "you're too friggin loud"
And my little SOCAN said [ whining ] "we got so much overhead!"
And my musicians went "like, when'll we get paid man?"
And my little agent did diddily-squat
did diddily did diddily did diddily-squat

I got me some fans and my fans please me
I fed my fans with Oggs and M-P-threes
And my beautiful fans [ slow to angelic crecendo ] send greenbacks to me ----

[ take a deep breath ]

Now I got greenbacks, my greenbacks please me
I keep my greenbacks in the Greenback tree
and all my greenbacks say "my - fans - like - me"
[ whistle, presumably to the bank ]
And our little website goes "MORE M-P-THREES!!!" (and Oggs!)
And our little CD went --- [ dead stop silence ]
And my little label said "you're just not moving the units!"
(alt "there's just no interest in that sort of thing anymore")
And my little producer said "do you think you could make it more
peppy, and it doesn't rhyme and some of your lines are way too long"
And my little venue went [ with authority ] "you're too friggin loud"
And my little SOCAN said [ whining ] "we got so much overhead!"
And my musicians went "like, when'll we get paid man?"
And my little agent did diddily-squat ... [ big finish ]
DID diddily DID diddily DID DID-dily ... squat

(Thanks, Gary. And especially for this: He writes "Being of sound body and as sound a mind as ever, I hearby release this song (the lyrics anyway) to the Public Domain as requested by the Creative Commons. Remember if you like, but I won't die if you don't."

So out of the muck, Sheila has pushed the idea of picking two candidates, one D and on R, to defeat in the fall. She nicely suggests an organization to start. She also describes Coble's (R, NC) libertarain opponent, supported by Dave Winer, Tara Grubb. Man, that would be a coup. Just the sort of thing they would say the geeks could never do.

Doc's got a nice email from Timothy Phillips (who has been a key contributor to the Eldred case from the start) pushing my hero Hank Perritt, and opposing Mary "Sonny thought copyright should be forever" Bono. These too would be great. But keeping political balance here is important -- knocking one D and one R (and best, with an L) is key.

RMS wrote with kind words about the substance of my OSCON talk, but with fair criticism about its form. Flash!, for all its magic, is not "free" in the relevant sense. Can't I, RMS asks, put this up in a free form? He volunteered to OGG the MP3 file. But is there someone who has played with the emerging free video tools enough to be able to convert the mix of text and images into a free form? I'd love to tinker with it, but there are mice to be freed.

Dave bravely (given the excitement about Mitch's latest contribution) defend's Don Park's concern that the Open Source Applications Foundation will fuel an "erosion in the sense of value for software." That is an important and valid concern, but it needs to be kept in context.

An email this morning from John Patterson of MetManiac reporting that he met with Met management and they have reached an agreement to allow MetManiac to return. Mr. Volpe of the Met is responsible for this sanity apparently. It is a nice practice to thank people for their sanity. Insanity reported here.

It was twenty years ago that I visited my first communist country. In 1982, I trekked through most of Eastern Europe, and a bit of the Soviet Union. I can still remember well the terror at the border to East Germany, when guards searched every inch of my bags before letting me pass. They even forced me to remove my shoes! (The last time that happened to me was, well, I guess SFO.) A Russian woman on the train told me: "Don't worry. As long as you stay on the path, you're fine. It's only people who slip off the path who fall into the abyss."

"The abyss."

I was reminded of that story on my last trip to a communist country. My wife and I just returned from China. The reminder, however, was not the behavior of the Chinese border guards. Indeed, getting through customs and onto a plane there is like it was in the US 20 years ago -- relaxed, respectful, easy, and you even get to keep your shoes. I was reminded instead by the Portland airport story that has been popped in blog space. Stay on the path, and you're safe. Slip, and you're in the abyss.

People -- on both the left and right -- boil in this space about what's happening outside. Yet outside blog space, there is just more of the same. The Times writes about Democratic hopefuls rallying to attack Bush for not making America safe enough. Wonderful. Who ever wins in 2004, we can be assured of more petty fascism to keep America safe.

Where is the candidate who asks: Must we sell our soul to win this "war"? Where is the political party that demands respect for principles that I thought were fundamental. If we must detain Arabs, must we do so inhumanely? If we must frisk every air traveler, can't we at least build in checks to the system to assure that it is not abused? If we must fight to defend America, can it at least be America that we defend?

I'm all with Dave that this space will be the space for political action in the future. If only the future comes soon enough.

We've posted a page on the Emily Somma Peter Pan case with a FAQ about the case. There's a link at the end of the FAQ with a suggestion for more questions. I'd be grateful for any suggestions, about new questions or old.

One measure of the cost of concentration is the effect that creators say it will have. Here's an extraordinary interview by Bill Moyers with Barry Diller. Favorite line: Moyers' asks, doesn't the explosion in the number of channels mean we have more diversity?

Diller: "No. Because what we have is an absolute fact that five companies control 90 percent of all of it. It has been reconstituted. Instead of it being three channels that were controlled by a few people, there are now 500 controlled by a few people."

One important issue that the change in market structure affects is the independence of creativity. Because of the repeal of network ownership rules, there has been a dramatic change in the ownership of pilot shows on major networks. This graph shows the change. In 1990, the overall percentage was 11.3%. In 2002, that had increased seven-fold -- to 70.2%.

How might this matter? Some of the most important television has been produced by independents. "All in the Family," for example, created by Norman Lear, was created because Lear could say no to network executives who wanted to tame his creation to fit the network image.

The future: fewer Lears likely.

Here's the data for new series:1990 -- 12.5% owned; 2002 -- 77.5%

Some of the best work cataloging the effects of increased concentration has been done by the Future of Music Coalition. In November last year, they produced a great report about radio deregulation. (The punch line: more concentration, less diversity, less opportunity for musicians).

FMC is now part of a group of artists that has sent a letter to Michael Powell about the upcoming decision to further "deregulate" media. Here's a link. More good stuff from people who know.

An Australian sent me this interesting rant about "deregulation" of the media:

You might like to bring your readers' attention to the state of the
media in Australia.

Our government has already gone down the path of creeping
"deregulation". Brisbane, the city I live in, now has only one daily
newspaper - Murdoch's "Courier-Mail". Interestingly enough Queensland
Newspapers (which is The Courier-Mail and some regional weekly
advertising newspapers) is the company Murdoch plundered during some of
his cash-flow problems a number of years ago. He was never called to
account by any regulatory body to answer for the fact that QNP employee
pension money that went missing for many months.

Once media concentration is allowed to creep past a certain point you
are in trouble. The media owners can push for more concentration due to
the fact that they control public opinion via TV and print media.

They got their present media concentration allowances by promising
politicians "more balanced reporting in the future". Everyone knew they
abused the power they had, but the politicians sold the general public
on the belief they could safely trade MORE power for promises of reduced
abuse! Crazy.

Rupert Murdoch and Kerry Packer are a media duopoly with very close
business ties that ensure that casino, cable-TV, digital spectrum and
broadband operation licenses all go to them. Competitors are removed or
regulated out of the market by politicians who have pressure applied
from the press - owned by these two astute businessmen.

Now that they own a great percentage of media they can, and do, use this
to finish off their quality competitors with their inferior but
ubiquitous newspapers, radio stations and TV stations. Kerry Packer's
"ninemsn.com.au" partnership with Microsoft ensures that the country's
PCs roll out with ninemsn.com.au as the default page in their web
browser, thus extending Packer's reach. Murdich and Packer now own the
rights to all major football codes in Australia, plus cricket and
tennis.

It is a nightmare. Newsworthy events either have to advertise with the
duopoly or risk only negative publicity. If it bleeds, it leads. Be it
red ink or red blood. Financial disaster or human tragedy are your only
hope of making the papers unless you pay or are owned by Packer, Murdoch
or Fairfax in which case your miracle arthritis cure gets front-page
space.

If you want to show people what will happen with "deregulation" study
the Australian experience.

There is growing criticism of the June 2 planned announcement at the FCC. MoveOn.org has joined the fight, as has BoingBoing, ReinRadar, and Aaron.

This is a brilliant cartoon by Toles which captures this whole debate best.

Nothing can compete with a good cartoon, but if there were a great op-ed about the dangers of concentration, this would be at the top of the list.

David Weinberger has been contributing small and important pieces to our collective cluetrain of thought (ok, that was too cute, sorry). He's got it right here.

Of all the lines that Dr. Pangloss pesters me with (and you know who you are), the one that gets me the most goes something like this: "But there's an internet now. Why do you worry about media concentration when there's an internet?"

So there's a million reasons why this is silly -- despite the importance of blogs, etc. But the one that's most relevant is this:

At the same time that media concentration restrictions are being removed, such that 3 companies will own everything, so too are neutrality restrictions for the network being eliminated, so that those same three companies -- who will also control broadband access -- are totally free to architect broadband however they wish. "The Internet" that is to be the savior is a dying breed. The end-to-end architecture that gave us its power will. in effect, be inverted. And so the games networks play to benefit their own will bleed to this space too.

And then Dr. Pangloss says, "but what about spectrum. Won't unlicensed spectrum guarantee our freedom?" And it is true: Here at least there was some hope from this FCC. But the latest from DC is that a tiny chunk of new unlicensed spectrum will be released. And then after that, no more. Spectrum too will be sold -- to the same companies, no doubt.

So then, Dr. Pangloss: When the content layer, the logical layer, and the physical layer are all effectively owned by a handful of companies, free of any requirements of neutrality or openness, what will you ask then?

Tom Barger has a nice story about changing his mind. If ideology didn't govern in DC, perhaps it would do some good.

So the Register has a piece about my post yesterday, attacking Dr. Pangloss and his predictions that the Internet will save us all from the dangers of media concentration. Midway through, Andrew Orlowski writes, "'The Internet is dying,' he writes." Actually, that's not quite what I wrote, the quotes not withstanding. What I wrote was: "'The Internet' that is to be the savior is a dying breed." That is, the "end-to-end Internet," where the edge holds the intelligence, is a dying breed. Something called "the Internet" will be with us forever, so in that sense, "the Internet" will never die. But the end-to-end internet (the only internet that really matters to any important issue) is a more fragile beast.

Doc is writing about a meme we have got to get right early on.

One (not the only) general way to describe what's important about the Net we knew is competition. The end-to-end Internet is a platform for fostering and supporting competition.

One general kind of competition that this platform will enable is competition between commercial and noncommercial content and innovation. A richer public domain, and more in the creative commons will mean more to choose among when creating or sharing or criticizing culture.

Competitors hate competition. They will always work to increase barriers to entry. And they will use a string of silly excuses to increase the barriers to the free.

We should resist these excuses. We should be fighting to preserve this competition. "How can you compete with free?" Jack Valenti asks, again and again? By making stuff better, again and again.

But the important point is this: It is wrong wrong wrong to bias the rules against the free. Free societies make closed societies harder to sustain. The same should be true of culture. If you find it hard to be closed and important, then either accept irrelevance or accept the Internet.

Memo to the few:

Two important items for today.

(1) This Internet is getting out of control. I just learned that when you search on news in Google, for example, it actually returns results with the work of people, not Incs. This has got to be stopped. Get Google to change its code. Incs. before people. Always.

(2) Research shows that the best way to resist the increasing public criticism of Mikey's plan to relax rules on media ownership is to focus on the internet. Why worry about 3 companies controlling all of media when we have the internet as a competitor?

(BTW: ever notice?: Mikey + (c) = Mickey)

Glenn has a great column on the "internet will save us" meme. The final paragraph captures it perfectly:

So, Michael, here's the deal: if you think that concentration in Old Media is okay because New Media will provide the discipline, then stand up for freeing the New Media from the shackles that the Old Media are trying to weld on. Because if you're not serious about freeing the New Media, then you're not serious about competition, and what you're describing isn't a bold new world, but a sellout.

Exactly right.

Mikael Pawlo, among the world's, and certainly Sweden's, most active lawyers monitoring of all things cyber, wrote a terrifying story about the law regulating the net last year. Seems a newspaper ran an online forum where readers could post. A reader posted speech that was deemed "hate speech." The newspaper was held liable -- not because it failed to remove the speech quickly enough. The newspaper was liable the moment the speech was posted. Thus, the message from the Swedish courts: Do not create fora where people get to speak unless an editor reads their speech first. The story is here.

And they say the Internet will check "big media" ...

Dan Gillmor has picked up the MediaCon story -- thankfully. His eJournal has begun collecting stories about the obvious effect of concentrated media: that the news will begin to sing in harmony with the interests of the owners. Here's a snippet from Salon on this. And here's his announcement of a mediacon channel.

I don't know who owns the SJ Merc, but whoever does, I guess Gillmor is at least some evidence against my concern that big media will compromise journalism. Some.

Howard Dean says at least two important and true things here: (1) "The way to deal with a leader is to be another leader, and to be strong in your views and present the American people with a choice"; (2) "For me, when the Cumulus Corporation, which owns a lot of radio stations, kicked the Dixie Chicks off their networks – a couple hundred radio stations – I realized that media corporations have too much power."

While I have no idea what this paragraph means,"[w]e opponents of megamergers and cross-ownership are afflicted with what sociologists call "pluralistic ignorance." Libertarians pop off from what we assume to be the fringes of the left and right wings, but do not yet realize that we outnumber the exponents of the new collectivist efficiency," I declare that the war of ideas in this media concentration battle is over. This brilliant piece by Safire ends it.

Let's now see whether ideas and ideals translate into policy.

Frank Rich has a great piece in the Times today about MediaCon.

" Though liberal and conservative organizations alike, from Common Cause to the National Rifle Association, are protesting this further consolidation of media power, most of the country is oblivious to it. That's partly because the companies that program America's matrix have shut out all but bare-bones coverage of the imminent F.C.C. action, much as the ruling machines in "The Matrix" do not feed their captive humans any truths that might set them free."

There were an extraordinary number of people who took up the Starbucks's challenge. Check out the links here and lots elsewhere on the web.

There were many in the comments to the challenge who suggested there was nothing wrong with Starbucks exercising control over its own property. Of course that is right. And of course it is right that Starbucks should have the right to control people who are bothering people with their cameras, just as Starbucks has the right to control people who are bothering others with a radio. And of course it is right that Starbucks has the right even to be extremist about it -- banning anyone who clicks even a picture of a friend, invoking mysterious claims about security or trade-secrets.

But if they exercise these rights to an extreme, then of course we have the right to criticize their extremism. We have the right to link their extremism to a growing phascism about photographs. (See the wonderful summary of your rights by Bert Krages.) For it is bizarre that we increasingly live in this world where every movement is captured by a camera, yet increasingly, ordinary people are not permitted to take pictures with cameras. This is yet another part of a growing obsession with control that seems to mark so much of this society. At a minimum, we have a right to take note of this control, and criticize it where we can.

That's just what I wondered about when I read these stories about Starbucks'. I'm a terribly untrendy sort -- I like Starbucks. But I couldn't quite tell whether the extremism of these stories was an exception or a policy. And I guess I was relieved to read, and to find, at least some stores where the manager of a place that loves to imagine itself a public place was actually giving members of the public a freedom to feel like they are in public. I understand of course -- as everyone should -- that this "feeling" is just virtual. It can be withdrawn at anytime.

Dean: ""In my travels around the country, I have discovered that this proposed
deregulation is one of the foremost issues on peoples' minds. I am asked
about it everywhere--in small towns in New Hampshire, and in major cities
across the nation."

Read his letter to Chairman Powell.

Scott Leverenz has built a page to collect the results of the weekend photography exercise at your favorite coffee shop. Check it out here. Thanks, Scott!

According to friends at the wonderful Bumperactive.com, Starbucks says it has no policy about non-media photographs in its stores. Someone should tell the stores...

Turner has a great piece in the Post about the dangers in Michael Powell's June 2 proposal.

From Sarah Lai Stirland's post: A picture of the current concentration.

This is an important week. Monday, the FCC rules on its mediacon rules. Monday could also be the day the Supreme Court decides the Dastar case. But most important of all: Wednesday, the 7th Circuit Court of Appeals hears the Aimster case.

EFF has written an amicus in the case (have you contributed yet?). EFF's core argument is that it is time that a Court of Appeals properly interpret the Sony Betamax case. Of all the Courts of Appeals in the US, this is the best one to hear this issue. (Bias-meter reading: high. I clerked at that court). Let's hope it hears it well.

This has been an issue close to my own heart. The best thing about Sony is that it recognized the harm that legal uncertainty can impose upon innovation. If innovators have to guess how a federal court will balance the effects of its technology upon copyright interests, then there will be less innovation. Thus the genius of its rule was that it said essentially this: if your technology is "capable" of a "substantial noninfringing use," then the question of whether your technology should be permitted is no longer a judicial question. If it is capable of a substanial noninfringing use, then the question of balancing (which is always at the core of copyright) is left up to Congress.

The judges don't get announced in a case in the 7th Circuit before the argument, so we can't know who will hear the case. But if you're anywhere close to Chicago, you should go see the argument. It is said that Aimee Deep will be there. But whether true or not, the freedom of that spirit will at least have a chance in Chicago.

Tomorrow's vote at the FCC is discussed in Dan Gillmor's column. The FCC will liberate the networks to consolidate because the FCC feels pressured by the courts. ("Courts" means the D.C. Circuit Court of Appeals, which sees a pressing First Amendment claim favoring network owners, but no First Amendment claim defending the public domain ("copyrights are categorically immune" from First Amendment scrutiny)). Read Dan's column and wonder: here in this democracy, this universal opposition to the actions of a bureaucracy does what exactly?

The Supreme Court has unanimously decided the Dastar case -- and correctly. The issue was whether a film producer could be held $1.5m liable for using a public domain film without giving credit to the former copyright owner. The decision is being described as a loss for 20th Century Fox. It is more accurately a gain for the public domain.

We have launched a petition to build support for the Public Domain Enhancement Act. That act would require American copyright holders to pay $1 fifty years after a work was published. If they pay the $1, the copyright continues. If they don't, the work passes into the public domain. Historical estimates would suggest 98% of works would pass into the pubilc domain after 50 years. The Act would do a great deal to reclaim a public domain.

This proposal has received a great deal of support. It is now facing some important lobbyists' opposition. We need a public way to begin to demonstrate who the lobbyists don't speak for. This is the first step.

If you are an ally in at least this cause, please sign the petition. Please blog it, please email it, please spam it, please buy billboards about it -- please do whatever you can. And most importantly, please help us explain its importance. There is a chance to do something significant here. But it will take a clearer, simpler voice than mine.

Kevin Kelly writes with the following amazing story:

> Thought you'd enjoy this. I was researching some stuff today and read
> this amazing story in THE INVENTION OF PRINTING IN CHINA, by Thomas
> Carter (1955):
>
> Carter is describing the very first printed book in the world, the
> DIAMOND SUTRA, a intact copy of which was found in a secret cave
> chamber in Kansu China. The book was published on May 11, 868.
> That's, what, some 1100 years ago. Here is the key: the very first
> book ever printed had a public domain notice. Here's what Carter says
> [p. 56]:
>
> The book consists of six sheets of text and one shorter sheet with
> woodcut, all neatly pasted together so as to form one continuous roll
> sixteen feet long... At the end, printed into the text, is the
> statement that the book was "reverently made for universal free
> distribution by Wang Chieh on behalf of his two parents on the 15th
> of the 4th moon of the 9th year of Hsien-t'ung."
>
> Designated Universal Free Distribution from day one.
>
> Wang Chieh would have signed the petition.

I know I said Dastar was decided correctly. I believe it was. But there is a line in the opinion that really gets me -- for it is the only place in the opinion where the Court cites Eldred, and it cites it for a proposition that must be wrong.

Justice Scalia writes, "To hold otherwise would be akin to finding that §43(a) created a species of perpetual patent and copyright, which Congress may not do. See Eldred v. Ashcroft." But this line show why it would have paid for the Court to pay more attention to the originalism in Eldred. For this line betrays a confusion about what "copyright law" was -- at least -- originally. And under an originalist reading of the copyright power, there would be no Copyright Clause problem with Congress requiring attribution for public domain works.

The confusion is the failure to distinguish "copyrights" from "authors rights." As Ray Patterson argued over 30 years ago in "Copyright in Historical Perspective," the framers understood "copy-rights" to be distinct from "auhors rights." Authors rights protect the right to attribution, and to some degree, the right of integrity. These rights are related to the "moral rights" the Europeans speak of. They are fundamentally distinct from the "copy-right" -- which was a right to control the publication of a work.

From an originalist perspective, then, it is true that Congress shouldn't be able to grant a "copyright" -- a right to control the publication of a work -- for a perpetual time. But the right to attribution is not, from that perspective, a "copy-right." And thus if there were another power of Congress that could support that right -- the Commerce Power, for example -- then a requirement of attribution should not run afoul of the copyright power.

Jed Horovitz has produced an extraordinary film about the "culture wars" which may well not be around for long. You can get Willful Infringement on DVD. Many people should. When the lawyers find this, we'll need archives stored in many places. (Note: the web page says I'm in the film, but only for a few seconds. The really great characters are two clowns.)

This is a nicely detailed review of the Aimster argument by a Chicago attorney.

The Creative Commons blog has a great story about Jeff Bezos recommending Cory's first novel (and there's more coming!) Down and Out in the Magic Kingdom. Cory's book is available either for purchase or for download -- for free, under a Creative Commons license.

As reported in Michael Geist's great Internet Law News service:

>CANADA TO SCRAP COPYRIGHT EXTENSIONS ON UNPUBLISHED WORKS
>Decima's Canadian New Media reports that the Canadian
>government plans to drop controversial provisions from a
>bill that would have extended the term of copyright for
>unpublished works by deceased authors. Dubbed the Lucy Maud
>Montgomery Copyright Term Extension Act, members of a
>committee considering the bill noted that they had been
>flooded with calls and emails of people concerned with the
>copyright extension.

Help us flood more members with calls and emails!

Phil Greenspun has a funny (as in sad) story about the market rising because the public domain is being transferred to corporations. The hook is (of course) the Sonny Bono Act (Free Culture!), but then Phil tells this bizarre story about how Disney World has apparently succeeded in getting the airspace above Disney World assigned to it. As Phil writes,

>Ever since the dawn of aviation it has been held that airspace belongs to the
>public and is to be regulated for the benefit of all by the FAA.  This is what, for
>example, prevents the owner of a farm in Missouri from demanding that Delta
>Airlines pay him a tax every time they fly over his farm. 

But there is a relevant pre-history here that is useful to remember. Before "the dawn of aviation," in fact, the law was that the owner of a bit of land owned not just the land, but all the land to center of the earth, and, as Blackstone put it, "to an indefinite extent, upwards." (See pg 18 here).

This, of course, created a problem once the history of aviation was born. For obviously, if I own all the space above my land, then companies like United are just napsterizing my property as they fly above my land.

The Supreme Court finally resolved this matter in 1946. The Causby's, North Carolina farmers, complained because military aircraft were causing their chickens to fly in panic to their death as they smashed into the walls. The Causby's claimed "trespass" and demanded the military stop flying over their land.

The Supreme Court rejected the argument that airplanes trespass. As Justice Douglas wrote for the Court,

>[The] doctrine has no place in the modern world. The air is a public highway,
>as Congress has declared. Were that not true, every transcontinental flight
>would subject the operator to countless trespass suits. Common sense revolts
>at the idea. To recognize such private claims to the airspace would clog these
>highways, seriously interfere with their control and development in the public
>interest, and transfer into private ownership that to which only the public has
> a just claim.

"Common sense revolts at the idea."

Where's a good "common sense revolt[]" when you need it?

The FCC has released its opinions in re the media concentration decision of June 2.

JD Lasica has a nice catch. Apparently, the Boston Globe has copyrighted the Declaration of Independence. But see 17 USC §506(c).

Eric Hughes sent me a great piece about The League of Extraordinary Gentlemen, which will be released this Friday. As he points out, every character in the movie (which the ads call "the most innovative film of the summer," and "when our future is at stake, they will be our last hope") is a character in the public domain. As WALT Disney before (and as Disney, Inc has apparently forgotten now), the creators of this movie have used the public domain to produce creative new work. For those who defend the idea of (effectively) perpetual copyright: Do you think there would be more of these works if there were a gaggle of rights holders to clear permissions with?

Here is Eric's list of characters, with the caveat that this is a work in progress. Send corrections to me.

From Eric:

The movie is based on a wonderful comic by Alan Moore, the best comics author alive. I had read the original a few years ago, but now there's a film out. So I got curious about where Allan Moore got all the extraordinary gentlemen from. Here's the list.

Allan Quatermain: A character from H. Rider Haggard stories, the most famous of which is King Solomon's Mines, 1885. There's an interesting profile at here. King Solomon's Mines was written on a bet that he could write something better than Stevenson's Treasure Island.

Thomas Sawyer: Mark Twain, Tom Sawyer, 1876. Huckleberry Finn came later. Character added for the movie; he's evidently the only American.

Dr. Henry Jekyll / Mr. Edward Hyde: R. L. Stevenson, The Strange Case of Dr. Jekyll and Mr. Hyde, 1886.

Captain Nemo: Jules Verne, 20,000 Leagues under the Sea, 1870.

Rodney Skinner. H. G. Wells, The Invisible Man, 1897. I have been unable to confirm whether this was the character's name in the novel.

Dorian Gray. Oscar Wilde, The Picture of Dorian Gray, 1890.

Mycroft Holmes. Arthur Conan Doyle, The Greek Interpreter, 1892. I'm not sure if this is the first appearance or not.

Mina Murray Harker. Bram Stoker, Dracula, 1897. Jonathan Harker's wife.

UPDATE: Seth helpfully provides the following additional links (and some corrections above)

Comic Book Annotations & Bibliographies

Annotations by Jess Nevins

Kim Scarborough sent this (warning: large mp3) wonderful radio show from the Columbia Workshop in 1937 about characters leaving the "copyright lane" for the "public domain." It is a brilliantly complex and funny tale that reveals an understanding about the value of the public domain that would be hard to recognize today.

Newsweek's Brad Stone has a great piece about LXG.

Free culture.

Jon Gordon has an interesting interview with Senator Coleman about the RIAA lawsuits. The stream is here, but wasn't working last I checked. Here's the mp3.

Public Knowledge, Creative Commons, and The Center for the Public Domain have launched a call for stories about the public domain.

There's an interesting story to be found in the thread here about a recent decision by Grinnell College to shut down a discussion space, Grinnell Plans, which was an important and vibrant community for students, staff, and alumni alike. The site has now moved to a private server, and the conversations continue.

The link above does a nice job in laying out the arguments that led to the removal, and arguments the school made for closing the community. Is Grinnell's decision common?

Jonathan Percy runs a cool site called Green Plastic, which is a fan site for the band, Radiohead. The site hosts, among other things, lyrics from the band. In June, Warner/Chappell Music contacted Percy to ask him to remove the lyrics.

This is of course increasingly common. Lyrics are copyrighted content. Posting lyrics makes a "copy" of them. Therefore, copyright owners who believe more control is better banish lyric sites to darkness.

But this time, the story was a bit different. Percy complied, and took the lyrics down. Fans were upset, and complained to Warner and to the band. Warner Chappell then contacted Percy again, and gave him a free license to post the lyrics. The lyrics have now returned.

Percy thus has permission to spread culture. Good for Warner Chappell.

Tony Auth is a favorite cartoonist of mine. In 1981, he drew a cartoon in response to the 9th Circuit Court of Appeals' decision in the Sony v. Universal case (the Betamax case). In that case, the Court of Appeals had held that the VCR was an infringing technology. Auth's cartoon captured the silliness of this perfectly: In a single frame, there was a VCR and a handgun, and the caption read (something like) "Which of these is illegal in California?"

I'm trying to clear permissions to use this cartoon. The people who handle Auth's rights can't locate the cartoon I'm speaking of. Does anyone have a memory of seeing this somewhere?

The recording industry has been strongly opposed to a statutory or compulsory license for digital music (not the Internet radio kind, but a reasonable kind that would enable the spread of digital content). They object that "the market" should set the rate for music, not a federal statute. (Of course, they have no hesitation appealing to the statutory rate for damages, as opposed to the ordinary market measure for damages, when it comes to a breach, but that's a separate matter).

But the history here is fun. Here's a quote from a 1967 House Judiciary Report, considering a modification to the law as it existed then:

[T]he record producers argued vigorously that the compulsory license system must be retained. They asserted that the record industry is a half-billion-dollar business of great economic importance in the United States and throughout the world; records today are the principal means of disseminating music, and this creates special problems, since performers need unhampered access to musical material on nondiscriminatory terms. Historically, the record producers pointed out, there were no recording rights before 1909 and the 1909 statute adopted the compulsory license as a deliberate anti-monopoly condition on the grant of these rights. They argue that the result has been an outpouring of recorded music, with the public being given lower prices, improved quality, and a greater choice.

"The result has been an outpouring of recorded music, with the public being given lower prices, improved quality, and a greater choice."

Nicely put.

(Thanks to Glenn Brown for drawing my attention to this report).

The Stanford CIS has been working on a case for a long time to establish the public domain status of Peter Pan. (The Internet has apparently already recognized it. Check out the Google search on Peter Pan). We represent a Canadian author, Emily Somma, who has written a sequel to the public domain portions of the Peter Pan story, called "After the Rain." Somma was threatened by the rights holders of the Peter Pan-related work still under copyright. The essence of their claim is that so long as anything Peter Pan related is under copyright/trademark protection, everything is. (The rights holder is a children's hospital in England, which has meant (1) that service of our complaint has been severely delayed by the UK government, and (2) that we get lots of nasty letters from people who think a charity should have the right to do whatever it wants so long as it benefits children. I'm all for charities, and especially for charities benefitting children, but threatening an author who is simply building upon the public domain is not the stuff a charity should be doing.)

ANYWAY, while practicing my Danish (not really: I am totally language illiterate) I came across another wonderful example of this increasing practice.

According to this story, there's a Danish character called "Gummi-Tarzan" (I think this is an image) that has been forced to drop "Tarzan" from its name by the ever-pleasant Disney Corporation. This because Disney believes it owns "Tarzan." This because Disney has trademark protection in a bunch of Disney work that builds upon Edgar Rice Burrough's "Tarzan," even though Burrough's Tarzan originates from 1914, and is therefore within the public domain. Nonetheless, from now on, Gummi-Tarzan must be referred to as Gummi-T.

The public domain was supposed to be a lawyer-free zone. So much for how things were supposed to be. (Thanks to Joergen Ramskov and Thomas Wesley Hinton for porting the story into a form that the I could understand.)

re: Domain Name disputes.

Open Studios is a non-profit that helps rebuild the public domain (with creative work contributed through Creative Commons licenses). It has announced Song Storm, which is a play list contest. Thanks to Tom Poe for pushing both.

So many thought Mr. Valenti's move to ban the distribution of Oscar nominated films on DVD was about reenforcing the power of the major studios. Maybe. But as I suggested, and as Stefan Bechtold reminds me, there's actually great data to support the idea that the movie piracy problem emergers with "insiders." See this empirical paper by people from AT&T (including Lorrie Cranor). Maybe the MPAA can get the RIAA to prosecute these "insiders" for them?

I apologize to Senator Edwards for interrupting his blog -- especially now that he is on to intellectual property and saying something extremely interesting and useful. But apropos of the balance that Senator Edwards is discussing, I learned today that Professor Ray Patterson has died.

Ray Patterson was one of the very first scholars in intellectual property law to identify and raise concern about the dramatic change in the law's reach. His 1968 book, Copyright in Historical Perspective is an amazing work mapping the transformation of copyright in America. Ray was the teacher of a generation of scholars, and though I met him only once, I am proud to count myself as one of his students. It is just profoundly sad that he did not live to see the law reflect the extraordinary work that he did.

Ok, so NBC produces a show about Private Lynch. She says the story is not true. But nonetheless, NBC runs the show. CBS produces a show about Ronald Reagan. The man who Would Save Reagan from TV and others say it is biased against Reagan. CBS cancels the show.

Apparently it is ok to bend the truth, but only in one way.

A followup to this story about a call to build a comprehensive package of world flags in SVG format: GNOME Desktop News reports the first release of the Sodipodi SVG flag collection. You can see the collection here.

Carl Jacobson of Cakewalk sent this very coolpicture. He tried to explain the freedom that could be his. Mickey just smiled.

The deeper I get into these wars to free culture, the more I come to wonder about what life back in the academy, only, will be like. I got a great taste of that yesterday, at a seminar at NYU run by Professors Ronald Dworkin and Thomas Nagel. These guys are the rockstars of the legal academy (though Nagel is a philosopher first), and this seminar is among the most serious, and most carefully prepared, that I have ever seen. I presented a few chapters from a new book, Free Culture, and was relieved to see I could still take about these issues in a purely academic way. Peter Leigh Northup blogged the event. (Thanks, Peter.)

Ok, this is very cool. AISO GrepLaw, Detritus as set up a "Sonny Bono is Dead" site, collecting samples from the works that would have passed into the public domain, but for the Sonny Bono Copyright Term Extension Act.

Sonny Bono, I am told, was a sweet man and great friend. I'm sure that's true, and his untimely death certainly robbed the world of the very best of this man. It's therefore very sad that the worst of Sonny Bono continues to echo -- this indiscriminate extension of copyrights. Congresswoman Mary Bono had some great ideas about how to make Congresswoman Lofgren's Public Domain Enhancement Act "better," as she put it. Is there a possible Sonny Bono Public Domain Act in the works?

Kevin Kelly has a great new feed, available soon in book stores and free online at Brewster's Archive under a Creative Commons license. It is fantastic (in the best sense of the term). Spread it widely.

So I'm at a cafe waiting for my car to be fixed, at the north east corner of Howard and 12th Street. The music here is free (actually, rebroadcasting of a radio station). The airconditioning here is free (ok, it's SF). The bathrooms are free (to customers). The electricity powering my laptop is free. The amazing mix of people coming in and out is free. And because of a network named "bitch", the IP is free too. Of course the coffee is not free, but because of all the rest, I've been sitting here for two hours, buying tons and tons if this drug.

They say the market is smart, so I'm hopeful about this wireless stuff. Here's another customer owned network, driving the cost of access down to zero.

Meanwhile, more on my whining about the wireless access at the WSIS conference: it turned out that even though the wireless access at WSIS was expensive and awful, the conference organizers were able to offer delegates free, perpetual monitoring of their every movement using the RFID built into the conference badges. How thoughtful of them. I guess WSIS was trying to teach the delegates what the future of the Information Society will be. It's just not the future either I, or the market, would select.

A couple days ago I noted with regret that our front runner, despite everything wonderful that there is to say about him, sounds tone deaf, or only "special interest" tutored, about copyright issues. He sounds like someone in the 1960s, who when asked about the environment, responds with "business is the lifeblood of our economy." Yes, of course it is, and yes of course copyright is the lifeblood of (some forms of) creativity. But if you think that's all there is to the issue(s), then you don't understand the issue.

It is thus not about "corruption" as one comment suggests. I don't think anyone in DC is "corrupt" in Dan Rostenkowski sense of the term. But it is about a corruption in the channels of communication. Again, if you think the issue is as Senator Kerry describes it, then I know who you've been listening to.

Of course, Democrats conventionally don't question the conventional "wisdom" about IP (except a few brave souls like Lofgren and Boucher), and indeed, some of the best questioning about IP has come from the Right (the old Cato, Judge Posner, the economists in the Eldred case). And if conventional wins elections, then more power to the Senator, for I am a strong believer in one term Bush presidencies. But a movement to fight "special interests" of the right, in favor of "special interests" of the left, is not a movement to fight "special interests."

A Peanuts (re)Mix.

Just about two weeks ago, Robert Boynton wrote a great piece for the Times about the free culture movement. It's not available for free from the Times anymore, though if you run this Google search, you'll find lots of places where it is archived.

The Progress and Freedom Foundation has now launched an attack on "the movement." So let me note two important quibbles I have with an otherwise great article.

First is scope: There is no complete history of this movement that does not mention Pam Samuelson, Jessica Litman, Eben Moglen, and more recently, Julie Cohen. Harvard's an important place in this, no doubt. But it is not accurate to speak as exclusively about Harvard. Litman and Samuelson made these issues salient. Moglen has been guiding the Free Software Foundation since the start.

Second is spin: I know the world loves to simplify, but it is totally misleading to frame this issue as left vs. right. The name "Copy Left" is silly both because it is not true to the real "copyleft" movement -- started by RMS, et al., and because this movement is not a movement of "the Left." Look at the briefs in the Supreme Court in the Eldred if you want a flavor of this. Phyllis Schlafly and Milton Friedman are not leftists.

It is important and great that Boynton's article made these ideas clearer to the world. But for those who read no more deeply than headlines, I'm afraid the real meaning of the Free Culture movement will be lost.

UPDATE: Turns out there is a free link to the Times article still available, but you have to find it using Aaron's amazing tool (which I had stupidly missed before).

UPDATE v2: Tim Phillips comments that the list should include Dennis Karjala and Neil Netanel. Well, actually the list of people who have been writing in this field is extremely long, and Neil's writing -- both about the importance of copyright and the importance of limits to copyright -- is very important. But I didn't mean to describe all of them. Dennis does deserve special mention for the extraordinary work he did at the beginning of the battle over term extensions, and throughout the life of the Sonny Bono Act.

So my story for the past months has been that this "war" on "piracy" will have unintended consequences -- most importantly, consequences for other creative remix forms of art. After a lecture in London, I was told by a leading executive at a major label that I was "completely wrong." That the "only" thing the record companies care about is controlling "piracy, which means copies."

Apparently, Jay Z has inspired them to care more. See the latest entry at Illegal-Art.org.

Though I don't like the message, I was amazed "Meet the Press" would insist on controlling the 45 second clip the Bush/Cheney campaign tried to distribute after last week's show. Some say the campaign insists it did "nothing wrong." I agree. So why did they cave so quickly?

As Ed Felten reported last week, the Journal of Algorithm's Editorial Board has quit en masse. Elsevier had raised its annual subscription price to a point the board thought prohibitive to the journal's mission, and the board thus resigned. This is another sign of the logic of the future of scientific publishing. Open access publishing (see, e.g., PLoS) makes expensive closed source publishing less and less acceptable.

Not -- as many seem to think -- because there's anything evil about publishers. Or about publishers making money. But because there is something evil about locking up knowledge unnecessarily. If there is another way to publish that doesn't result in knowledge being limited to the few, then science at least ought to pursue it.

So if there's a "movement" out there, it begins in the colleges. And if it has begun anywhere, it has begun at Swarthmore. Check it out, and follow.

So blustered innumerable Congress-ites re CBS's behavior managing the Super Bowl. But of course, none of them were talking about the judgment CBS showed when it decided that the MoveOn ad was "too controversial" but ads about viagra, the war on drugs (sponsored by the institution that appoints members of the FCC), tobacco sponsored messages, and of course, the Janet and Justin show were not. The Congress-ites were more interested in assuring better systems to censor artists. Bob McChesney's got a few things to add.

This is a great piece about how Jed Horovitz became a martyr in the cause.

I blogged some quibbles about the Bonyton article in the Times about a week ago. In it I noted (but nothing more) PFF's attack on the movement. That led PFF's James DeLong to send an email to his followers, in which he states:

The [Free Culture Movement] does not think that production and consumption of intellectual creations should be organized by property rights and markets. Instead, it favors a mechanism of production based on the open source software movement, in which software is made available at no charge, and is also freely modifiable by the world at large.

But here's the real question. Do these DC types (a bit of bit-head thinking, I agree, but sometimes it is necessary) really just not read? Or is this willfulness inspired by the belief that their funders don't read?

And Mr. DeLong: If you'd like to debate this in a context where misstatements can be corrected directly, I'd be honored to debate you. Obviously, that would have to be an "open" context, where people were "free" to disagree with you and quote you without your permission. I hope that isn't too communistic for your taste.

This story about the Joyce Estate telling the Irish government that it will sue if there are "any public readings of Joyce's works during the festival commemorating the 100th anniversary of Bloomsday" is just the latest example of the copyright abuse of the Joyce estate. Australia, you've got twenty more years of this silliness to contend with.

Douglas Keenan has a nice short piece about "limited times" and a 95 year copyright.

The Grey Album is a remix of Jay-Z's Black Album and the Beatles' White Album by DJ Danger Mouse. It is a remix without permission. In our legal system, permission is required to remix others' art (except if the work is in the public domain, and of course, nothing enters the public domain anymore). The Grey Album is therefore illegal art.

Today is Grey Tuesday -- a day set by many to protest the war waged on the Grey Album. Sites across the net are posting the Grey Album. Go here to see scads of sites engaging in this act of disobedience. Lawyers representing EMI have already started warning the sites about the legal liability they face.

Under American law, you don't need permission to make a cover album. That freedom has been assured since 1909 when Congress granted creators a compulsory right to remake music, so long as a small fee was paid. The record companies have fought hard to defend that compulsory right. As a 1967 Congressional report put it:

The record producers argued vigorously that the compulsory license system must be retained. They asserted that the record industry is a half-billion-dollar business of great economic importance in the United States and throughout the world; records today are the principal means of disseminating music, and this creates special problems, since performers need unhampered access to musical material on nondiscriminatory terms. Historically, the record producers pointed out, there were no recording rights before 1909 and the 1909 statute adopted the compulsory license as a deliberate anti-monopoly condition on the grant of these rights. They argue that the result has been an outpouring of recorded music, with the public being given lower prices, improved quality, and a greater choice.

But the cover right does not cover a remix. So DJ Danger Mouse must, under the law, ask permission before he can practice his art.

Some artists think this is fair. Some don't like the idea of their work used without permission. What if Disney remixed DJ Danger Mouse into a re-release of Mickey-jailed-since-1928-Mouse, without asking or paying first?

And indeed, it is just this defense that the record companies offer first: we're just enforcing the wish of the copyright owners. This is not, they say, a record company cartel. This is about the rights of artists.

But that defense would be more credible if the record companies were to allow artists the choice to set their content free for remix at least. We've been working with Gilberto Gil to push a sampling license, under which artists could set their music free for dangerous mice and others to remix. But we've yet to find a record company that will allow their artists this freedom. Indeed, the legal department at Vivendi purported to ban us from "approaching" "their" artists.

Should the law give DJ Danger Mouse the right to remix without permission?

I think so, though I understand how others find the matter a bit more grey.

Should the law give DJ Danger Mouse a compulsory right to remix? That is, the right, conditioned upon his paying a small fee per sale?

Again, I think so, and again, you might find this a bit less grey.

But should the record companies give artists the right to choose to free their content so that artists like DJ Danger Mouse could remix without seeking permission first?

There is nothing grey about that question. It is absolutely black and white. Artists should at least have the right to free their content to mash or remix. And record companies absolutely should not stand in the way of at least that.

After doing so much to destroy their reputation in the eyes of most consumers and artists, signaling at least this would be a useful first step towards showing that the record companies care about "their" artists first.

Lawrence Solum, who has done great work interpreting the text of the Progress Clause (ignored by the Court in Eldred), has an interesting and useful comment on Doug Keenan's effort to interpret the meaning of "limited times." Solum's basic strategy is to interpret "limited" in light of the actors the clause envisions -- authors. What's interesting about that is that it throws into relief the fundamentally important change Congress made when it effectively expanded the reach of "Authors" to include corporations. While there is a "limit" to an Author's life, what is the natural "limit" to a corporation's life?

Thanks to Michael Geist for alerting me to this: There's an extraordinary decision (unanimous) by the Canadian Supreme Court that all looking for balance in this "war" should read: LSUC v. CCH. As Michael summarizes it: "the court now appears to be considering all copyright law interpretation through the lens of balancing user rights with creators rights."

As I just said, I've got a new book coming out in about ten days. To clear the shelves, and to thank blog readers, I've got a few hardcover copies of my last book, The Future of Ideas, that I'll happily send to anyone who makes a contribution of at least $5 to Creative Commons. To qualify for this special offer, either click on the PayPal logo, or send a check to Creative Commons at 559 Nathan Abbott Way, Palo Alto, CA 94305. If you'd like the book defaced with my signature, then send an email after you order to llynch at stanford.edu.

On March 25, Penguin will be releasing my new book, Free Culture. (Hmm, you'd think a book by "Penguin" about "Free Culture" would be released ...). All reviews (both good (Jonathan Schwartz in the American Lawyer) and bad (Stephen Manes of Forbes)) will be collected on a soon to be announced site, along with totally objective reviews of at least some of the reviews provided by the author (me). I'll be doing a couple events around the book. The first is next Tuesday at the 92d Street Y in New York. The day the book goes on sale, I'll be debating James DeLong of the Progress and Freedom Foundation at the National Press Club in Washington, DC.

Stay tuned for more surprises.

As some of you may remember, in addition to Eldred v. Aschcroft, there are a number of other cases that we're pushing to set judicial limits on Congress's appetite for the public domain. Golan v. Ashcroft is one. Golan challenges Congress's "restoration" of copyrights to work that had passed into the public domain. The government moved to dismiss Golan on the basis of Eldred. Today the District Court (opinion) rejected the government's motion, and, while striking an Eldred-related claim, refused to dismiss the other 3 counts of the complaint.

Thanks to Wheeler, Trigg & Kennedy in Denver, and former Center associate, and now law professor, Ed Lee, the battle continues.

Meanwhile, stay tuned for great news re the Public Domain Enhancement Act (and see if you can find a couple more signatures to push the total over 20,000).

And stay tuned again Monday for other related news.

I'm in Tokyo for four days for two Creative Commons events -- one at Glocom (which has been the key sponsor of CC-jp, and one at NTT-ICC. More about both elsewhere, but when I got here, I realized I didn't have a Tokyo guide, and though I spent 5 months here just a year ago, I have forgoten everything.

And then just this morning, I see this on Justin's links: Just In Tokyo (by Justin -- get it!) -- easily the most interesting Tokyo guide I've seen, is now free under a Creative Commons license.

Donna points to Ren's open source graphic of EFF's proposal for a voluntary compulsory license (I know, the meme makers say we should call it a "voluntary collective license" because voluntary compulsory sounds odd, but it is no more oxymoronic, imho, than the statement the "Recording Industry Association of America" cares about artists). The picture is great, and its source is available for others to make it better.

Quoticus is a tool for enabling video political speech: Clips of candidates which can be remixed as you wish. It is a brilliant idea, supported by Brewster's Internet Archive. With it, let the net capture and spread more stuff like this.

It has taken me way too long to catch up on this point, but I've been thinking it through for sometime now, and here's version 1.

Scott Matthews is a talented coder. He's the author of Andromeda, and this very cool thought experiment Baudio. And he's become a valuable contributor (Salon) to the file sharing debate.

He posted a piece on Dave's IP list (I used to be a subscriber, but I had to change email addresses and then can't seem to be able to get back onto the list -- no longer interesting enough I expect) which points to a suggested contradiction between my views and Creative Commons. Here's his post with a response by Dan Hunter.

Dan's right about many things, but don't think he's right about Scott's intelligence. (More...)

So Free Culture will be released next week, and the reviews have begun. As I've mentioned, I'll be collecting these reviews on the book's website -- both positive and negative, and good and bad. And here I'll be commenting about a few of those, as it seems appropriate. (I'm not sure yet what the algorithm for "seems appropriate" will be: if a review can be positive/negative as well as good/bad, then most likely I'll think it "appropriate" to respond to what, imho, is a bad-negative review. But we'll see. I certainly won't be echoing good reviews here.)

The first to qualify then is this extraordinary review in Forbes by Stephen Manes.

So the Stanford Center for Internet and Society has filed an action on behalf of the Internet Archive and the Prelinger Archive challenging unconditional copyright restrictions that "orphan" works. Relying upon the silver lining in that dark cloud that was Eldred v. Ashcroft ("But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary"), this case challenges a fundamental change in the contour of copyright protection, and asks the district court to therefore provide "further First Amendment scrutiny."

The fundamental change in the "traditional contours of copyright protection" is Congress's abandonment (formally in 1976, but effectively only in 1992) of any formalities for copyrighted work, and in particular, the requirement that copyrights be renewed. In 1992, Congress passed the BCIA, extending the term of all works in their initial term in 1964 through 1978. The Sonny Bono Act then extended those terms in 1998. The CTEA was thus the first statute in the history of the US generally to extend the term of copyrights that did not, or would not, pass through the filter of renewal.

The case is described on the CIS site. The complaint is linked here.

Pundit watch: you'll be able to identify a pundit who has not read either Eldred or the complaint when they suggest the case is the same as Eldred was. It is not. Indeed, the claims are fundamentally different. The only relation between the two is that Kahle/Prelinger v. Ashcroft follows the rules suggested in Eldred for challenging Congress's transformation of the traditional contours of copyright law. Eldred said: tradition matters. This case says: the tradition was radically changed.

If the case were to prevail, Congress would have to reenact the Sonny Bono Act to protect non-orphaned works. Of course, there'd be more opposition now, so it's not clear such a law would pass, but under Eldred, they'd be free to do so. Or, alternatively, Congress might moot the case by passing a law that effectively imposed a renewal requirement. Say, for example, the PDEA.

Mash media is now Republican. This is well-done.

Thanks to the lessons explained by others (Cory), and the courage of a great publisher (Penguin), Free Culture launches today with a free online version of the book, licensed under a Creative Commons license. You can get the book here, though at the moment, only the bittorrent version is apparently up. Later today, there will be a direct download available from the Free Culture site, and from the Amazon site.

There's been a lot of noise about the formats for Free Culture -- or rather, the format. I'm a big believer in PDF, but the reason I've not posted more than PDF is just this -- I'm not a production company! Nor am I half as cool as Cory. But as I licensed CC under a CC-attribution-noncommercial license, anyone's free to make a derivative work of the PDF so long as not for commercial purposes. And if you send a link (or a file), I'd be happy (and grateful) to link to it from the Free Culture site.

Some have worried over the apparently conflicting text between the CC license and the copyright notice in the book. Please don't. We simply took the pdf of the book and wrapped it in a CC license. Indeed, a CC license is embedded in the PDF as well. That license is the writing that supersedes the licensing text.

Finally, I've gotten a bunch of emails from people saying there's a typo -- Lessing -- in the first chapter. No typo: There really is an author, Lawrence Lessing, who wrote the book I cite.

The Wall Street Journal ran a review of Free Culture Friday. (I can't show you a link because on the Journal's theory of the web, it doesn't make sense to even allow searches on your website without paying first.) Great review, with an interestingly critical twist.

The thrust of Stewart Baker's criticism is that my argument should be directed to the Right: That copyright law is "asbestos litigation for the Internet age." "Big Copyright," he continues, "is one special interest that Republican strategists should love attacking." And he ends by mapping copyright as a wedge issue:

What's to fear, that Hollywood will end its generous support of Republican candidates? And talk about wedge issues. Voters under 40 are already more Republican than any other generation. What if the administration stood with them on this issue, proposing a cap on the damages that the industry can extract from college students for downloading music? Say, $1 a song, or even $10, instead of $150,000. Karl Rove could put that on the table, sit back and let John Kerry choose between his contributors and our kids. If that happens, Mr. Lessig could end up next to Ralph Nader in the pantheon of liberals that the Republican Party has learned to love.

But Baker is exactly right that this issue should play to the Right as well as to the Left. And as you'll see in this video from the Progress and Freedom Foundation debate with Jim DeLong (recorded the day before Baker's review), it is a point I've been making as well.

Reviews for Free Culture are here, with comment space and an RSS feed too.

This has amazed even me. AKMA asked whether a free audio version of Free Culture can be built. Joi seconded the idea, and one day later, ten chapters are claimed. Doug Kaye of ITConversations has already recorded chapter one -- Creators. Noncommercial derivative works, and maybe even a competition in versions (I want to record a chapter!). Very cool.

Lawrence Solum (who has entered an elite status after Vint Cerf gave a paper praising his Layers Principle paper) is running a blog-class this week on Free Culture. Follow along (as I will be) and learn.

There is an extremely beautiful ebook version of Free Culture here. I continue to be astonished at the creativity free culture (the idea, not the book) inspires.

I hadn't realized how sensitive Mr. Manes is. For a guy who feels no hesitation in calling someone a "moron," "idiot," and "buffoon," it's a bit surprising he'd find this as "blustering and bloviating" or filled with "rage." Once again, his colorful abuse while funny, if a bit overworked, is still wrong.

As FreeCulture (the movement -- nothing to do with me) points out, one weakness to the web that would nag Ted Nelson is the inability easily and always to point directly to a part of the text on a webpage. Trevor Smith has solved that with Free Culture, the book. Here's a version of the book with each paragraph linked to an href. Very cool.

Building on AKMA's idea, Scott Matthews of Turnstyle and creator of the cool juke-server technology, Andromeda, is now hosting the audio files for Free Culture on space donated by the folks behind CDBaby. Alternatives for each chapter can populate this very slick interface, and there's code at the bottom of the page for producing this: "Free Culture" popup audiobook.

Will the sanity ever stop?

How influential is the Free Culture Movement and the book that gives it its name? One way to judge is by measuring the ferocity of the opposition.

Those who have pushed for copyright maximization over the past decade or so have been able to do so unfettered by inconveniences like public deliberation or even serious attention.

The public interest side has until recently lacked a vocabulary, and agenda, and a bibliography. It also lacked a lobby and a vocal constituency. So the maximalists – those who strive for a permission (and payment) culture have smiled through these radical years, knowing that nothing anyone says will disrupt their march toward complete privatization of culture.

Until now. Now maximalists are panicking. People everywhere object to their excesses and tactics. People are reading books that outline the values, the movement, and the strategies that might help free up the symbols, words, and ideas that we all rely on in a Democratic republic and a creative economy.

I know this because the maximalists are sinking to ad hominem attacks.

Michael Madison was kind enought to point me to this link of Helen Vendler's speech to her 2004 Jefferson Lecture. It's provocative on matters of the relative value of philosophy and literature to a humanistic education. It would not be hard to embed some of her points in a Free Culture argument as well.

I've been told we'd never get anywhere until our argument fits on a bumpersticker. Well, the folks at Bumperactive had no problem doing that:

.

Wulfius Khan put the words into a picture, which links the argument to Ed Felten's Freedom to Tinker argument in a way I hadn't quite seen.

(edited at the request of a friend)

Tomorrow I'll be in DC (sigh) testifying before the House Subcommittee on Commerce, Trade and Consumer Protection about Congressman Boucher's Digital Media Consumers' Rights Act. Testimony here. Essential message to follow:

Paul Miller (aka DJ Spooky)'s new book Rhythm Science just came in the mail. Cool form, cooler words, amazing tunes.

WHYY reports that Fox News Channel's Bill O'Reilly, host of The O'Reilly Factor, will not authorize Fresh Air to relicense segments from his amazing appearance on Terry Gross's amazing show. Speculation why he'd ban the repeat of his worlds elsewhere is growing. But it is obvious to this writer that it is nothing more than a flash of modesty by this engaging figure, no doubt motivated by a desire to drive traffic to Fresh Air's site (again, it is here). Yet another example of commercial media reaching out to help noncommercial media.

Alas, whether record sales have fallen (which is a different question from whether sales have fallen BECAUSE OF quote-piracy-unquote) continues to be contested.

Those radicals in Holland have protected the right of a search engine to search for MP3. (Thanks to Branko Collin)

Tarnation is the talk of Cannes (or so the BBC says; as if I talk to anyone who talks to Cannes). This autobiography of abuse by Jonathan Caouette cost $214 (video tape; one set of angel wings) to make. Cost to clear the rights for a public distribution: $400,000. (Thanks to Josh Cogliati).

There's lots about the conflict between SoundScan's reports about increasing album sales in the US, and the RIAA's claim to have been hurt by "piracy." This piece by Moses Avalon does a very nice job reconciling the numbers. Here's a summary paragraph:

Forget the confusing percentages, here's an oversimplified example: I shipped 1000 units last year and sold 700 of them. This year I sold 770 units but shipped only 930 units. I shipped 10% less units this year. And this is what the RIAA wants the public to accept as "a loss."

I've been getting tons of angry email about something nice I said on Screensavers. I don't remember just what I said, but I apparently praised Tor Books for innovativeness with ebook publishing -- e.g., with Cory's books.

This led angry fans of Baen Books to write to complain that Baen was far better than Tor. (One fan was so angry that he bought me a trial subscription to Baen -- just the sort of criticism I love best!).

I apologize to Baen fans, for I certainly don't intend to criticize the amazingly innovative business model of Baen (which nicely mixes free and non, and strongly encourages new authors). And I respect greatly your loyalty. When's the last time a fan of Sony Records wrote to criticize praise of EMI? (Who was the last fan of Sony Records?)

So I just reported on Iraq's new copyright law. And now it seems Mr. Bremer is already violating the law! (Thanks to Chris Kelly for the link and Joshua Marshall for the catch).

Roger Rustad has posted some great examples of political remix at greplaw. The Fox one is particularly good.

But does anyone know of great conservative remix culture? Attacks on Kerry? Or liberals?

The beauty of a duck. (Chill, lawyers.) (Thanks to Laura Arguello for the link.)

Michael Tucker sent this link to a film he's making about the war in Iraq. "It includes two video clips that I think your readers will appreciate, no matter what their views on the war." Favorite quote from a soldier: "For y'all this is just a show, but we live in this movie."

And I can't believe there isn't any conservative remixes out there. Really?

Jerry Lobdill writes with this interesting story about a remix culture now regulated:

This is an example of the kind of art flamenco is--or was. And I speak particularly about the guitar here. The roots of flamenco are lost in the mists of time. They go back at least into the late 1700s, but probably farther. At this time there are over 40 distinct forms which are each characterized by a specific repetitive rhythmic pattern termed "compas", a specified musical mode (major, minor, or phrygian), and certain signature resolution phrases or other unique musical features. 

I have played flamenco guitar for 47 years. When I was learning to play, the current versions of the forms could be traced back to a few virtuosos who came on the scene as early as 1905 or thereabouts. Every form is played as a series of sections that are distinct in melody and are sandwiched between more or less standard rhythmic sections characteristic of the form. The melodic sections are called "falsetas". The sections are played in whatever order a player chooses and players spend spare time trying to invent new falsetas or modifying old ones. Most players know the genealogy of their falsetas to some extent, but anything that is older than a couple of generations is usually of unknown origin. 

Lore has it that great flamenco guitarists invent falsetas on the fly during performance. This is nonsense. But that's another story. Hardly any guitarist can read music and/or uses any kind of notation to commit falsetas to paper.

In the cante (song) the verses (letras) and the melodies are generally very old though most are associated with the name of the originator. 

Through the 1950s it was expected that players would play mostly traditional things with minor additional innovations. The falsetas of a particular player did not usually evolve from one recording to the next, and, indeed, players had favorite falsetas that they played for years.

But as soon as recording industry moguls got involved all that changed. Nowadays they are claiming copyright on everything that is recorded, even the traditional portions that have been played since antiquity. Guitarists such as Paco de Lucia are pushed and prodded to innovate, and he has said publicly that the creation of new material is the most difficult part of what he does in this modern environment. Yet even his innovations (when he plays flamenco instead of the bastardized watered down stuff he mostly plays these days) contain traditional resolution phrases and rhythmic sections that define the forms and are ancient anonymous creations.

Spanish copyright has gone crazy locking up the public domain along with the new in recent years.

I have reams of manuscript transcripts of fabulous flamenco guitar music that will never be published because of the abuse and tyranny of copyright law. Like many non-Spanish flamenco guitar players, I play what I consider to be the best--just like Spaniards did before commercialization of the art. It's sad that all this will never be published for the enjoyment of the world. 

(cf. "It's simple.")

More from Jerry Lobdill, who writes about his own wonderful experiences with the existing copyright system:

I am a small businessman. Among other things I am interested in publishing a few things. I have multiple interests, so the subjects I'm interested in vary. One of my interests is the history of the US, especially the era of the wild west.

I have discovered an out of print book that is extremely important to students of the wild west. It is extremely rare and was published only in first edition in 1928. This book was renewed in the name only of the author in 1955, and under present law will not enter public domain until 2022. (According to my research no published works will enter the public domain until 2019.) However, the author died in 1963. He had no children, and his wife died in 1976. Her will does not mention any copyrights. I am obtaining a copy of the will of the author but have not seen it yet. I have had the US Copyright Office do a paid search, and all they have on record is that the author renewed the copyright in 1955. There is no record of transfer of ownership on file.

I inquired of the original publisher if they knew anything about the author's copyright and was first told that they knew nothing about the book of interest. Then, they said they thought they owned the copyright but were investigating to be certain. Then I was told that they definitely owned the copyright. When I asked for a xerox of the copyright transfer document that law prescribes, transferring the renewed copyright to them, they refused to produce it, saying that their policy is not to provide such information to "private parties". When I explained that I was thinking of republishing the book and that the US Copyright Office records show that the renewal belonged to the author only, and that I needed proof of their claim before negotiating for publishing rights, I was told that I was too small a publisher to qualify.

So...here I sit, with an extensive file that contains no transfer document. The US Copyright Office has no record of a transfer of ownership, and I feel that there is a strong possibility that the publisher is lying about ownership. If so it would not be unusual in today's environment. They probably hoped that I'd negotiate with them without proof.

As a result of this situation I have spent money and time and have only a written assertion of ownership without proof. Were it not for this unsupported claim I would know that there was a transfer or that there is no one alive who is likely to challenge my republication of the book.

The law is flawed in my opinion if it requires a written transfer of ownership (like real property) but does not require a claimant to produce the proof of ownership except in the context of a copyright infringement suit.

If you agree, what can be done to get the law repaired? The way it is now it invites and rewards false claims of this sort to the detriment of reasonable use of works that are effectively public domain.

(cf. "It's simple.)

TheBots have released an archive of George Bush Audio.

I knew there had to be some. The comments to my query have a bunch, but this is a favorite. More?

Michael Geist's latest column in the Tornoto Star maps a sane process to realizing balance in IP. Help spread the sanity.

Creative Commons will be hosting a book party to celebrate Dan Gillmor's new book, We the Media, which (the good) O'Reilly is publishing, and which will also be available under a Creative Commons license. (They never got around to having a book party for my book. Oh well. They're busy.) The date is July 30, in the evening. More details soon.

Thanks to the folks at Variety, this is a pdf of my op-ed about Outfoxed, that ran in Variety. Text in the extended entry.

Bravo to FOX for fighting the network control freaks. Competition over derivatives only makes the derivatives better.

"Is 'Fair and Balanced' ridiculous?" So opened the FOX News Watch segment examining Robert Greenwald's film, OutFOXed. And astonishingly, the uncontradicted view of FOX News Watch was "yes"! As Neal Gabler put it, "To say that this network promotes the Republican view ... is like saying that the Pope is Catholic. It's self-evident ... pretty much undeniable." But, he asks, as if he hadn't actually seen the film, "So what?"

So what? Well first, start with the question that opened the segment: Fox says it is "Fair and Balanced." If it is "self-evident" that it is not, then I guess we agree then that it is "ridiculous" to say that it is. And second, "obviously" media critics get this about Fox. Anyone who critically watches Fox gets this about Fox. But as one questioner at the San Francisco opening put it, for those who aren't media critics, and for those who don't actually watch Fox, just how "ridiculous" Fox's claim is is something significant. My bet is that a cross-section of FOX viewers would be surprised just how false Fox's claims actually are.

The discussion opened with Jim Pinkerton of Newsday calling the film "dull and didactic." He then asserted that the film says that media networks are "either worse than the Mafia that ran Cuba in the 1950s or worse than the Soviet Union." When I heard him say that, I understood why he saw the film as "dull and didactic": if this is his view, he didn't really watch the film. The opening allusion to the Mafia comes from Robert McChesney, where he compares how the Mafia carved up Cuba with how the government carves up media ownership -- nothing to do with the media being "worse than the Mafia." The allusion to the Soviet Union, also McChesney's, again had nothing to do with Pinkerton's claim. McChesney's claim was simply that propaganda is most effective when the audience is unaware -- unlike in the Soviet Union.

The other simple fabrication of Pinkerton was that the film comprised "two or three disgruntled employees." That's true if by "two or three" you mean seven (four listed here; three requested anonymity). But the more fundamental fabrication is the suggestion that the film's claims are based on nothing more than the word of "two or three disgruntled employees." The film has five independent sources for its "self-evident," as Grabler puts it, conclusion: (1) former Foxies, (2) Fox memos (unmentioned by anyone on the show), (3) independent studies of Fox viewers, (4) media commentators, and (5) clips from Fox shows.

Cal Thomas -- who was one of the people in the film -- found the film flawed because it "ignored the many Democrats I've had on my show." Again, not true. The movie never asserts that there are no Democrats, or liberals on the show. It just asserts -- not denied by Thomas -- that the "balance" is "unbalanced." Indeed, in one of the best parts of the film, Greenwald reports a media group that studied months of Brit Hume's "Special Report" and found over 80% of the guests on that premier show were Republican -- and that most of the Democrats were centrists. Not balanced, and not a fair picture of the facts reported.

Thomas goes on (with his wonderful announcer voice -- I love listening to him) to say something extraordinary however. Here's the quote:

"I think the reason that this network looks so Republican ... is by contrast on [sic] what the others do. If you went and did -- as the Media Research Center has done -- clips of what is said on the broadcast networks ... you would find an enormous tilt to the left. So by contrast it looks conservative."

Jane Hall (Who? She's an assistant professor in the School of Communication at American University) complained the film was flawed because it left "out any evidence to the contrary." There were plenty of liberals on Fox she said -- for example, she said, she was a liberal. She also mentioned Jeff Cohen, cofounder of FAIR, was on Fox News Watch "for five years."

Jeff Cohen? Actually, the movie not only doesn't ignore Jeff Cohen. He is one of the most critical interviewees. And again, the film doesn't say there are no liberals on Fox. The show instead reports Clara Frenk reporting that the "quality" of the liberals was far less than the quality of the conservatives -- in the sense that the liberals were either "unknown" or "weak."

Hall also repeated the total non-thought that has been framed around this film -- that somehow the film is weak because it didn't get Roger Ailes to respond. The film in fact has Roger Ailes stating Fox News was to be a fair and balanced news program. It also has Roger Ailes stating Fox News failed its viewers on election night by allowing George Bush's cousin, on the basis of extremely weak data, to call the election for Bush. But even if it didn't twice include Roger Ailes in the film, the idea that before you release a film critical of someone you must include their comment is inane. I've had many critical reviews of my work published, some very intelligent, some others not. Never has anyone asked me for my comment on their review before they publish it. Indeed, to do so would be unethical.

But my favorite part of the whole show is the contrast between segment one and segment two. The review of Outfoxed was in segment two. Segment one was about -- I swear -- "Media bias." For a full segment, Fox News Watch focused on a single statement by Newsweek's Evan Thomas. As Media Research Center quotes him,

The media want Kerry to win. They’re going to portray Kerry and Edwards as being young and dynamic and optimistic, and this glow is going to be worth maybe 15 points."

I guess they would know. They're the trademark holder for the words "Fair and Balanced" (at least until the challenge to that trademark gets resolved).

Monday at Slate.

Tuesday at Slate.

Eric Eldred is in more trouble. As this story reports, he's been trying to give away public domain books away. The park service doesn't like it.

Wednesday at Slate.

First Doonesbury, and now AO Scott reviews Outfoxed. Is there anything left?

Thursday at Slate.

Jim Gilliam, one of the producers on Outfoxed, has a great account of O'Reilly's temper tantrum about reaction to the movie.

UPDATE: thanks kd. I don't agree that the points are "reasoned" and I certainly think it is absolutely wrong for him to continue to slander Glick as he has, but I'm happy that the debate avoid side-issues.

The end at Slate?

Roger Ailes on Outfoxed's use of clips (from an interview in Broadcasting & Cable, not available online):

Any news organization that doesn't support our position on copyright is crazy. Next week, we could take a month's worth of video from CNN International and do a documentary "Why does CNN hate America?" You wouldn't even have to do the hatchet job Outfoxed was. You damn well could run it without editing. CNN International, Al-Jazeera and BBC are the same in how they report-mostly that America is wrong and bad. Everybody should stand up and say these people don't have the right to take our product anymore. They don't have a right to take a year's worth of Dan Rather or Ted Koppel and edit it any way they want. It puts journalism at risk.

Notice the strategy: Rally the cartel to protect itself against the critics.

And the New York Post:

It's a dangerous precedent.

Not just because it so badly twists the truth. Or violates copyright laws.

But also because it sets up every news outlet for the same low blow.

If The New York Times or CNN approve of this tack, then just wait until someone lifts an early draft of some Times piece or CNN's out-takes.

No doubt, a double standard will kick in, and they'll be up in arms.

But they'll have been defamed nonetheless.

By now, Americans are used to these tricks of the Left — shady tactics for which the film's sponsors, MoveOn.org and George Soros, are notorious.

But good people — good journalists — must stand up and deplore this trend. They should let Soros & Co. know that deception and outright theft transcend reasonable discourse.

Everyone's seen the brilliant JibJab Flash of Bush/Kerry. The piece claims to be a "parody" of Woody Guthrie's "This Land."

As any copyright lawyer recognizes, it is not a "parody" in the sense that "fair use" ordinarily recognizes it. A "fair use" "parody" is a work that uses a work to make fun of the author. JibJab is using Guthrie's work not to make fun of Guthrie, but of the candidates. (For the now classic case on this, see Dr. Suess v. Penguin Press, where a "parody" of O.J. Simpson using The Cat in the Hat was not "fair use.")

Guthrie's publisher's lawyers too recognize this. As CNN's Allen Wastler reports, Guthrie's publisher is now threatening JibJab.

What's great about this story, of course, is the levels of hypocrisy. Guthrie was not much for property rights himself. It's said that there is a not-often-sung verse:

But whether Guthrie believed in property rights or not, the key thing this story should do is force us to ask generally: Does a law that makes a political parody such as Jibjab illegal (even if it is not a "parody" in the copyright view of the world) make sense?

(Note to citizens: We're permitted to change the law.)

(Thanks to Paul Puglia!)
(UPDATE: Ernie says I'm wrong.)

Karl puts it more succinctly than I.

Ernie has a very nice criticism of my claim about the publisher's jab at JibJab. So does Martin. I hope they're right. See also Chris Cohen's excellent collection of cases.

"The Integral" has an album of remixed campaign ads called "Campaign Songs," available under a Creative Commons license, and hosted by the Internet Archive.

Reason brings some reason to the JibJab jumble, through an article by Jesse Walker.

Here's a BitTorrent file that will get you, p2p, the video of the Hearings on the INDUCE Act, prepared by Tom Barger. Watch, and blog the substantial noninfringing use.

So ordered the 6th Circuit Court of Appeals. Sampling, we're told, is piracy. But be certain to see the 19 footnotes in this relatively brief opinion, or the 28 separate quotes the opinion includes from other peoples work. I assume the court got a license for those.

Now that's not quite fair. The court's decision turns upon its "literal" reading of the sound recording statute. The sound recording statute has no de minimis exceptions, the court held. So while you are free to copy three notes from a musical composition, you can't copy the same three notes from a recording. So copying (so long as de minimis) is fine; cut & paste is not. It is a "bright-line" rule the Court has crafted: Ask permission first. (And don't worry, they might have added. It's simple.)

So once again: life in the analog world is freer than life in the digital world. You can do it, just don't use technology to do it -- unless, of course, your lawyer has spoken to their lawyer.

One of the exciting thing about the early days of the Democratic primary was that there was at least some debate about whether the Democratic Party would continue to be led by IP extremists. Some of the worst in IP came, after all, from the Clinton administration. Reflecting on that, many were hopeful we'd see some new thinking. Many of the most passionate Deaniacs were eager to see new thinking on this issue. Senator Edwards addressed some of this on this blog.

Word now is that Bruce Lehman, former Assistant Secretary of Commerce, and Commissioner of Patents, is spreading the word that he is running IP policy on the Kerry campaign. In the scheme of extremists, few are more extreme. Of all the government "Czars" in our form of government, he proved himself to be most to be feared.

Yet another bit of depressing news, if true, from this extraordinarily important campaign.

There's a great article in the New Scientist about the dangers in IP extremism. As it rightly notes,

THERE are some things in life we take for granted. Among them are the ability to lend each other books, record TV programmes, back up expensive computer programs, and sell on our old CDs when we've got tired of them. ... That could change. New technologies are giving copyright owners the power to control the time and place we can view or play digital versions of music, films and text so tightly that we run the risk of losing these rights altogether.

The good folks at Downhill Battle have organized a call-in campaign re the Induce Act. Check it out here.

Professor Terry Fisher's new book is the most serious, comprehensive treatment of the alternatives we face for protecting copyright in a digital age. While it's famous for his particular solution, it is most effective when you see his solution against the background of the complete set of alternatives that he surveys.

I think this book deserves extremely serious consideration by all who think seriously about this issue. I've asked Terry to guest blog during the week of October 24, but I'd encourage people to look at the book before then. His publisher has permitted him to make only two chapters available freely. You can find them on his website. You can also get the book at Amazon.

Adam has a great piece about freedom of the press.

A group of good sorts have put together a PAC to frame and push IP-related policies. Here's the site with the list of candidates they're supporting. Cool if they could find some marginal sorts who have been totally obtuse about these issues to target as well.

For those lucky enough to see Terry Fisher lecture, this is nothing new. But for everyone else, this is a four slide presentation that tries to identify the potential savings to a record company from internet distribution of CD content.

Check out this Liberty Film Festival. Maybe we can get some cc-d content there?

My nephew, Tom, has got a blog. If you knew my family, you'd know this is real progress.

So there's great excitement about the effective pause that's been pressed on the INDUCE Act. Hatch has pulled back and is regrouping.

But has anyone been mapping the bigger strategy here? For the last year, Hatch and friends have been passing these single page copyright acts, getting them marked up and put into the hopper through expeditied procedures. All but one was directly awful; the one is indirectly awful. (This is the bill that explicitly authorizes technologies like ClearPlay, but which, indirectly implies, that other related technologies are not "fair use" ("why did you need a statute to permit ClearPlay if you have a 'fair use' right..."))

These thousand tiny cuts have now been united in a single bill, HR 4077, which is racing through Congress -- while all our attention was focused on INDUCE.

Nice play by those lobbyists. I guess that's why they get paid so much.

I missed a bunch of cuts here. Apparently, the true magic of Hatch's strategy will happen today. It will be hard to follow, because it will all happen so quickly. But this is the plan:

The House has passed HR 2391, the CREATE Act, which modifies how collaboration affects patentability.

Apparently, Senator Hatch will substitute that bill today, and plug in:

(1) HR 3632, which regulates the trafficking in fraudulent labels (including watermarks?), as well as a sentencing enhancement for using a falsely registered domain name in the commission of your offense, as well as

(2) HR 4077, which, among other things, includes the following:

(a) the PIRATE Act, which increases copyright enforcement power
(b) the ART Act, which criminalizes camcording in a theater
(c) a sense of Congress that P2P is bad (really)
(d) a reduction of the criminal copyright liability standard, to make it easier to catch file-sharers (the new standard is in the extended entry below)
(e) the Family Movie Act, which codifies ClearPlay-like technology

So what's the politics of all this: By my count, (1) lots for the content industry, (2) one bit for family values (ClearPlay), (3) zero for the pubic domain.

UPDATE: PublicKnowledge has an action center.

Here's a blog devoted to popculture remix. CC licensed. But needs a RSS/Atom feed.

So I'm a big believer in the value that registration requirements create. Copyright law is the ONLY federal IP regulation that doesn't have mandatory registration. But as EFF's Jason Schultz points out to me in an email, HR 4077 is about to make registration even less useful:

Don't know if you saw this, but the MPAA/RIAA's new copyright bills, HR 4077 (passed by the House, awaiting vote in the Senate) makes two significant changes to what little remains of copyright formalities in the US:

1) Section 602:

"A certificate of registration shall satisfy the requirements of this section and section 412 irrespective of any inaccurate information therein ..."

-- in order words, you don't even have to have an accurate registration anymore in order to sue for infringement. Potentially, you could even make knowing misrepresentations in your form. So much for fair and public notice.

2) Section 603:

"Section 504(c)(1) of title 17, United States Code, is amended in the second sentence by inserting before the period ‘‘, except that the court in its discretion may determine that such parts are separate works if the court concludes that they are distinct works having independent economic value’’.

In other words, you can get statutory damages for separate works within a compilation work, even if you only register the compilation work. The twist is that there is very little requirement that a compilation registration list all distinct and separate works contained therein. Thus, you can now register and sue on works and get statutory damages without any real public notice. The main reason for this is that the RIAA was having problems suing for individual song downloads because they had registered the entire album as a single compilation work. As applied to software, this could allow someone like SCO to sue for the copying of a single file or .dll when the vendor had only registered the entire program or OS. So much for metes and bounds.

Or so he is reported to have said here.

Note to General Ashcroft: We checked. You're right. You don't. Nor do you have a privacy attitude, a rule of law attitude, or a free speech attitiude.

So here's the real question: How can you be Attorney General of the US, if you reject so much of the Constitution's values? (Public Domain, Article I, 8, 8; Privacy, Amendment 4; Rule of Law: the Constitution, as interpreted by the Supreme Court, in, say, Rumsfeld v. Padilla; Free Speech: Amendment 1).

Stay tuned: Oral arguments in Kahle v. Ashcroft on the 29th. (Could there be a better case name?)

I've been getting lots of emails regarding this potential suit against Disney for its use of the character Peter Pan. But Disney is right -- as we've been litigating in a related case, Somma v. GOSH, for the past year.

That case is about to get interesting. More soon.

We've collected many great stories about the burden of copyright relevant to our case, Kahle v. Ashcroft. You can see them here. Please add more.

I criticized CBS for its judgment about propriety. From its description, that show seemed to me plainly "appropriate" before an election that would decide, in part, whether the President's decision was one America wanted to ratify. By contrast, I thought its decision to air a show about the President's service in the National Guard was inappropriate -- not relevant to this election.

I've not seen the Sinclair documentary (indeed, there are conflicting reports about whether it is in fact completed). From its description, it seems to me to be closer in content (but not in viewpoint) to the show CBS did show, and further from the show CBS decided was "inappropriate," and so I expect, on the principle I've articulated so far, I would criticize the Sinclair decision. Maybe not, depending upon the content, but probably.

Many have criticized the decision to show the documentary on legal grounds. They have called upon the FCC to stop the broadcast — an extraordinary action for any government actor to take (almost as absurd as stopping a recount from a First Amendment perspective) — and Chairman Powell has indicated, on First Amendment grounds, that he won't stop the broadcast.

No one thinks there's a First Amendment problem when the New York Times endorses Kerry, or the Wall Street Journal endorses Bush. And no doubt, the difference between Sinclair and these newspapers is, one could say, just a difference in degree.

But differences in degree become differences in kind — especially when the power a speaker has is supported by government backed monopolies. Sinclair has the power it has as a broadcaster because the government has given it an exclusive right to something the techno-ignorant call "spectrum." These absurd (and constitutionally unjustified) grants of power to control who gets to speak, of course, continue, as the New Yorker's James Surowiecki brilliantly describes this week. They have always been understood to raise unique questions under the First Amendment.

So I'm sympathetic to those who would qualify the First Amendment analysis that applies to newspapers when applied to broadcasters, though I am less eager than some of my friends to see the FCC decide what speech gets to go on television before a Presidential election.

So much is familiar.

But less familiar is a second sort of "regulation" that Sinclair will not escape. That is the "regulation" of the market, buttressed by the law suits that will certainly be filed by Sinclair shareholders.

In the last week, the stock price of the Sinclair Group has fallen by 10%. The company has lost $60,000,000 in market cap. Josh Marshall has a great clip from a Lehman Brothers research memo attacking the decision from a business perspective.

This drop is no doubt in part a calculation about how Sinclair will fair if the election goes for Kerry. But in part it may also be the product of a large citizen reaction to this corporate partisanship. Among the groups creating pressure on the company are:

Boycottsbg.com
SinclairWatch.org
MediaMatters.org

The First Amendment does not mean people have to like you for what you say. Nor does it protect you if people decide not to buy your product because of what you say, or advertise on your network, because of what you say. All it means is that the government can't punish you for what you say (or at least, that's at least what it should mean, "indecency" notwithstanding).

But "free speech" is more than what the First Amendment says. And I wouldn't be honest if I didn't confess a bit of anxiety at all this "punishing" for what people -- including corporations -- say. The most that can be said in its defense is, I should think, this: In a world where "mainstream" broadcasters such as CBS are too timid to broadcast a plainly relevant story about war "too close" to an election, or where NBC refuses to license clips from "Meet the Press" because it wants to stay "neutral" in a political debate, the action by a concentrated, powerful, rightwing network to use its power to direct the election is bad. If we could break up the government supported monopolies of broadcasters, and change the culture among broadcasters generally, I'd have no problem with it. But now, in this culture, in an election this close, the decision stinks. And I for one won't shed any tears for the "punishment" Sinclair receives from the market, or even the plaintiffs' bar.

Next week, guest on this channel: Professor William Fisher of Harvard, to discuss his new, and IMHO, extremely important book. Be prepared. Those Harvard profs like to cold-call on people.

The Free Culture Movement (started NOT by me but by the first to stand up to Diebold) now has over 13 chapters in colleges around the country. Read more at TechNewsWorld.

So months ago, I posted this odd post, titled "INDUCING gun control legislation". I had to pull the blog post because the Washington Post had accepted something close to this op-ed. At the time, of course, INDUCE was looming. Activists, including Public Knowledge, EFF, and industry has now of course succeeded in stalling the legislation for now.

The basic point of the op-ed is obvious: There's no difference in principle between regulating p2p manufacturers, and regulating gun manufacturers. Both make products that do harm; if you believe PK/EFF w/r/t p2p, and the NRA w/r/t guns, then both make products that do good too. If you want to be principled and distinguish the two, you'd have to say either that the harm caused by one is much greater than the harm caused the other, or that the good produced by the one is much less than the good produced by the other. By my reckoning, such an effort to distinguish would doom gun manufacturers, not p2p manufacturers.

Anyway, there's a bit more to the argument in the piece itself. But one point I want to make clear: My argument is about what a principled Congress would do. It is not a prediction. It is of course "naive" to believe Congress believes itself constrained by "principle." But if principle is absent, then please, let these Congressmen drop the self-righteousness as well.

As /. reported, the District Court has ruled against us in Kahle v. Ashcroft. The Judge decided the case without argument. We will be appealing.

An amazing first exchange at the Becker-Posner-Blog. Two questions: Is there another Federal Judge who blogs? And is there another Nobel Prize winner who blogs?

Given how much the executives at the RIAA are paid, I guess it doesn't make sense for them to actually read something about the views of the people they attack before they attack them. Or so it would seem from this piece by Neil Turkewitz.

Mitch Featherston has a new blog on free software and free content.

CNUK (as in CN-UK) (as in the webcast radio station in Exeter) has launched "a non-profit organisation that is dedicated to creating and promoting creative works that can be built upon, shared and sampled. All not-for-profit, with for-profit options left available to the creators."

If I had the time, and the money, I'd do the deep analysis that it would take to explain to myself why it is I constantly hope to be surprised by Mr. Gates. Yet I never am. Here's BoingBoing reporting the red-baiting of Mr. Gates.

It's one thing to read this sort of thing from a studio exec, or head of a record label -- surrounded as they are by the sort that surround them. But the people I've met at Microsoft are miles beyond this sort of silliness. Does Mr. Gates not even talk to them?

As is old news (but everything on the Lessig Blog is old news), the Copyright Office has asked for comments on whether a solution is needed to deal with "orphan works" -- works still under copyright but whose owner cannot be identified.

This, as PublicKnowledge notes, fantastic news. For many years, many have been trying to refocus this debate on copyright from the binary questions that p2p sharing seems to raise ("seems to") to the more pragmatic and fundamental questions that this insanely inefficient and bizarrely complex system of speech regulation called copyright raises. When Congress shifted our system of copyright from an "opt-in" to an "opt-out" regime, it transformed copyright from a system that automatically narrowed its protection (and hence regulation) to those works that had some continuing need for copyright protection, to a system that totally indiscriminately spreads copyright to every creative work reduced to a tangible form -- automatically, and for the full term of copyright.

This issue is the focus of our challenge in Kahle v. Ashcroft. It is something I've been whining about in every publication that will have me (see, e.g., this op-ed in the LA Times).

But this is an issue that I've only become aware of because of the writings and emails from many who visit this space. And it is time for you to speak to government. No one who read the emails that I've collected could think that this was not a problem. But the copyright office doesn't accept email inboxes. It reads submissions only. The requirements are simple. Submission is free. We'll be organizing as many submissions as we can at eldred.cc. But please help spread the word: The Copyright Office needs to hear about every example of where the existing system is stifling the cultivation and spread of our culture. Not because Congress extends the term of copyright for Mickey Mouse. That battle is over. But because the way in which it protects Mickey Mouse blocks access to the balance of our copyrighted culture - for no good copyright, or free speech, related reason. This point is clear to many. You need to make it clear to the government.

In 20 minutes, I'm getting in a car to go to the airport to fly to Sao Paolo, to fly to Chicago, to fly to San Francisco, to get in a car to go home. It has been an insanely intense few days in this astonishing place.

This morning's panel was packed in what seemed to be an old factory. The room was overflowing with at least 1,500 people, and a panel of 5. Manuel Castells began, with a careful and extremely interesting diagnosis of the net's development. I then described the remix culture culture has been (legal and free) and the remix culture culture could be (amazing and diverse) and the blocks to that new culture coming about (law). Christian Alhert told the story of the BBC's Creative Archive. And JP Barlow gave one of the most intense and powerful speeches I've ever seen him deliver. This place is personal to him.

Then Gil spoke. Needless to say, the warm up acts were just that. He electrified the audience, delivering a written speech as poetry slam. He promised more support for free software, and free culture. And he again embraced the Creative Commons movement in Brazil, which is exploding everywhere here. Again he took questions. Again he answered critics, directly, and passionately. I was reminded of his comment to me in the car the other night: we're just citizens here.

After lunch, I visited the Youth Camp at the WSF, where 50,000 tents, and 80,000 kids are participating in WSF events. At the core was a Free Software lab, with about 50 machines, all running GNU/Linux, and constant lessons about how to set the systems up, how do to audio, and video editing, how to participate in free software communities. This was organized totally by the kids who ran it. Machines in shacks, hay on the ground, wires and boxes everywhere.

I got to talk to the organizers of at least one part of the lab for about an hour. JP Barlow and I peppered them with questions as they described their "Thousand points of culture" project -- to build a thousand places around Brazil where free software tools exist for people to make, and remix, culture. The focus is video and audio; no one's much worried about Office applications, or the like. It is an extraordinary, grass roots movement devoted first to an ideal (free software) and second to a practice (making it real).

They have the culture to do it. Again, there were geeks, but not only. There were men, but plenty of women (and lots of kids). They were instructing each other -- some about code, some about culture, some about organizing, some about dealing with the government -- as they built this infrastructure out. Think Woodstock, without the mud, and where the audience makes the music.

I'm going to write more about this, elsewhere. But I've not admired more in as long as I can remember.

Kembrew McLeod's great new book, Freedom of Expression, has just been released. You can buy it from Amazon, or download it under a Creative Commons license here. Having read the book myself, I'd recommend both.

On my way back from Memphis, where I spoke at the Rhodes College Institute on the Profession of the Law. This is an annual event (well, my speaking there is not an annual event, but you understand), and I was struck not just by the College (which seems plucked from Oxbridge), but by the seriousness with which 100 lawyers spend a morning thinking, and arguing, about real issues. Maybe its something about the pure Tennessee air (my mom's from Chattanooga), or the distance from Washington, DC. But it is such a pleasure to be able to talk about these issues with people thinking about them genuinely.

There's a great stew brewing at Boston Legal. Next week's episode has an OutFoxed plot. A school principal uses FOXBlocker to block Fox on televisions in his school. David Kelley's original script explicitly mentioned Fox and Bill O'Reilly. ABC apparently forced him to remove the references. The network has also refused to run an ad for Outfoxed.

So there's a blog first created by the volunteers who watched Fox to create the data necessary to produced OutFoxed. They posted an item about a Bill O'Reilly column, which itself was posted on the web. The company syndicating O'Reilly's column wrote them a nasty letter, telling them to take the column down. They did, and replaced it with a link. The same company wrote again, insisting that the blog was guilty of "unauthorized linking."

Dear syndicators of Bill: Me thinks there's no such concept as illegal linking (outside of China, at least, and please, don't pester me with misreadings of the 2600 case). Indeed, I think that I, like anyone else, am perfectly free to link to the column, as this link does. And indeed, I'd invite anyone else out there who thinks that we still live in a FREE LINKING world to link to the same. Got to find some way to keep those lawyers busy.

So I wrote a piece in Wired about the IP wars and music. My argument was we needed fewer voices like mine, and more voices like Tweedy's. Wired liked that, and decided they needed to arrange an event with more of my voice. Who am I to say no?

So I did something today for the very last time in my life. I'm publishing a comment in the Minnesota Law Review about an article by Brett Frischmann titled "An Economic Theory of Infrastructure." His is a great article; I was happy to write the comment.

But today, on the brink of publication, I had to confront the "Publication Agreement." In order to give the Minnesota Law Review my work, I have also to give them my copyright. In particular, they get the "exclusive right to authorize the publication, reproduction, and distribution" of my work. They have in turn sold that right to Lexis and Westlaw.

Never again. It has taken me too long to resolve myself about this, and it was too late in the process of this article to insist on something different. But from this moment on, I am committed to the Open Access pledge:

I will not agree to publish in any academic journal that does not permit me the freedoms of at least a Creative Commons Attribution-Noncommercial license.

This is, of course, much less than RMS insists upon. My views are more confused than his. I am not yet convinced of this point w/r/t books. I am not yet convinced w/r/t eliminating the non-commercial restriction. But, still, there is no academic or scholarship related reason why the publishing of academic works today should require more of me than this. And to the extent academic publishing demands more of me than this, I will not support it.

At this point, I know of one law journal that may, soon, be able to publish my work. I hope there will be more. But until there are, there will be no more law review articles by Lawrence Lessig - a relief to many, no doubt; a loss to none, to be sure.

The 711 unique comments submmitted to the Copyright Office on the "Orphan Works" question have been posted. This is a fantastic response. The comments of Creative Commons are posted here. Thanks to the Free Culture Movement, EFF and PublicKnowledge for running the Orphan Works site.

Now maybe we should get a wiki going to have a collaborative analysis of the comments?

But the event at the New York Public Library with Jeff Tweedy, Steven Johnson, and me on Thursday, 4/7, will be webcast. Click the image above to go to the extremely cool setup at Wilcoworld.net.

One year ago -- April 23, 2004 -- about a hundred students gathered at Swarthmore College to begin "an international student movement to free culture." (Dan Hunter described the event in LegalAffairs). The event was organized by the students who had sued Diebold after Diebold sued them. The movement now has about ten chapters around the country.

Happy Birthday, Free Culture Movement! Creative Commons has a present that we wanted to announce today. Bizarrely, we're still waiting for the license. More soon (we hope).

The good folks at Duke have put together this cool chart on documentary films.

Nicholas Rombes has a cool blog on digital cinema.

Georg Krog has an excellent summary of a recent Norwegian Supreme Court case on linking and copyright infringement.

Chris O'Shea pointed me to Ben Hanbury's Free Culture page, which has a fanstastic collection of relevant stuff, and this beautiful movie called RecycledTV. The original link is here, but I've moved it to my server to share the bandwidth costs. I don't believe I've met Ben Hanbury. I should. Many should meet his work.

I've just arrived in South Africa after speaking in Norway. I had been invited by Kopinor to participate in their 25th Anniversary. My speech was a classic reminder that audience is everything. I count it as a total failure. (More below)

{UPDATE: I apologize that this sounds (upon rereading and upon reading the comments) critical of Kopinor or the conference. That is not my meaning. I have disagreements, of course, but this is critical of me -- of my "failing to connect" -- with a community that is extraordinarily important to the future of these issues on the net. As I said in the talk, such societies are often better at dealing with the rights issues we confront in the US; working out where and how is the constructive challenge we face. My talk is available here. The other presenter in my panel is here. And the question and answer session is here. }

The kids at FreeCulture.org have gone legit. Read about FreeCulture.org, Inc..

It's just been announced that the South African Constitutional Court has decided in favor of Laugh It Off. Laugh It Off had produced a series of t-shirts which used trademarks to make critical points about the trademark owner. The most famous of these shirts was one that used a famous beer label "Black Label" and remixed it to a "Black Label, White Guilt" logo. The producers of the t-shirt were sued, and lost in three courts. The Constitutional Court has now apparently reversed the judgment. I've not seen the opinion yet, and will update when it is posted. Here's an article with some background.

Update: Here's the decision.

Hyperion Records is one of the very best independent classical labels. According to its news page which is now up, it's lost an appeal which will now jeapordize its existence. Hyperion was sued by Dr. Lionel Sawkins, who had created a performance edition of four works by Lalande. The British court has now concluded that a performance edition, even one that does not claim to be an "arrangement," is copyrighted. Apparently, the "sweat of the brow" in producing the performance edition was enough to create an "original" work.

The British system shifts costs to the loser. That means the exposure could be "hundreds of thousands of pounds if not a million." Most charitably, this is a close question. If you believe that this label should not go bankrupt just because they tried to defend the side they defended, you may think about offering some support.

One of the most interesting presentations at this fantastic conference was given by Eve Gray, of Eve Gray & Associates. Gray was asked to study the publishing strategy of the Human Sciences Research Council (HSRC) in South Africa. This research institution had a traditional strategy of publishing lots of research books, and selling them. Gray convinced them to change their strategy -- to give away all their research books for free online, and offer a high quality print-on-demand service for anyone who wants the paper version. The result: "the sales turnover of the publishing department has risen by 300%." As she concluded her presentation, "giving away books and lead to an increase in our book sales." There's much much more in her interesting analysis. She has generously offered it for downloading. Here's the press release.

The event I did with Johnson and Tweedy at the New York Public Library is now available in video and audio formats at Wilcoworld. Notice the license.

Boing Boing has a great story about Rush Limbaugh's copyfight.

So the world is bursting with extremely cheap, very good high quality digital cameras. No doubt the vast majority of images snapped (is that the verb these days?) with those cameras are by people who have no interest in enforcing a copyright. Yet as Grant pointed out to me, the AP reports, an increasing number of photo labs are refusing to print "high quality" digital images, out of fear that they "might" be professional photographs, and therefore, "printing the pictures might be a copyright violation."

This begins to make plain a point Rusty Russell suggested to me in an email recently: No doubt copyright is a property right. But why isn't anyone out there defending the property rights of digital camera owners? This is a conflict in property rights, produced by an insanely inefficient property system -- copyright. The solution is not, as some seem to believe, to abolish copyright. It is instead to abolish the insanely inefficient part. Yet it is the character of our time: to argue against inefficiency is to mark yourself as a "communist."

So as reported about two months ago, the Free Culture Movement turned one in April. I promised a present. At the time, we were organizing a call in recording of "Happy Birthday," from some of the leaders of the free world. Well, finally, after some struggle clearing rights, and after lots of nitpicking on my part, we've released the song. Check out the page at Creative Commons, donate something in support, and download the song.

Sorry for the delay.

Stay Free! has a fantastically interesting story about the struggles of a film maker with the permission society.

According to Cathy Kirkman of Wilson, Sonsini, Goodrich and Rosati, the Register of Copyrights has decided to propose abolishing the compulsory right granted by section 115 of the Copyright Act. This is the provision that gives recording artists the right to record "covers," so long as they pay a specified fee.

Remember this quote from a 1967 House Judiciary Report, considering a modification to the law as it existed then:

[T]he record producers argued vigorously that the compulsory license system must be retained. They asserted that the record industry is a half-billion-dollar business of great economic importance in the United States and throughout the world; records today are the principal means of disseminating music, and this creates special problems, since performers need unhampered access to musical material on nondiscriminatory terms. Historically, the record producers pointed out, there were no recording rights before 1909 and the 1909 statute adopted the compulsory license as a deliberate anti-monopoly condition on the grant of these rights. They argue that the result has been an outpouring of recorded music, with the public being given lower prices, improved quality, and a greater choice.

Copyright Law Revision, Committee on the Judiciary, 90th Cong. 1st, Sess., Rep. No. 83 66 (March 8, 1967).

Apparently the Register believes performers no longer "need unhampered access to musical material on nondiscriminatory terms." What progress.

So I posted a notice about the Register's testimony about section 115. I'm in the middle of the cc-iCommons-Summit, so I didn't have much time to say anything of substance. My post simply points again to the 1967 testimony about compulsory licenses, and it highlights the point about nondiscrimination.

From this, two highly respected (by me and many) commentators have offered a critique of my comment. Ernie and Joe Gratz both praise aspects of the Register's proposal. They translate that praise into criticism of my comment.

I too would praise much in the Register's proposal. She is right to identify the debilitating effects of the transaction costs in the existing system. And she should be praised for looking for new, creative ways to avoid those costs.

But my criticism was quite local and specific, and not really addressed by either Joe or Ernie. My criticism was about the potential for discrimination. The Register is almost exactly right to say "But in determining public policy and legislative change, it is the author - and not the middlemen - whose interests should be protected." Almost exactly right, because in my view, we should be determining not just "the author" but "the authors" -- the ecology of creativity enabled by copyright's rules. The wonderful and powerful claim in the 1967 testimony is that granting fewer derivative rights to composers than we grant to, say, book authors, produces a wider range of music creativity. I find this argument to be compelling.

So I am concerned with the fact that "[n]othing" in the proposal "obligates a copyright owner to utilize a MRO, but the increased efficiency of that structure provides an incentive for them to do so, just as they have all utilized performing rights organizations." For I'm not convinced that the decision to include rights within a MRO is solely a function of transaction costs.

That will of course invite the question -- "why should composers have fewer rights than authors"? (Joe criticizes the "massive and ongoing wealth transfer from song writers to record companies.") My answer -- which I've blathered on about elsewhere -- is that this has it backwards. The restriction on speech -- which every derivative right is -- should have to justify itself. And that "justification for private rights," as libertarian law professor Richard Epstein puts it, "has to be social." The particular difficult justification presented by this extremely odd "private right" is framed well by Professor Rubenfeld. That work, and of course the work of many others, should lead us to ask again and always: how broadly should the law secure "derivative rights" — remembering again that copyright was born with no derivative rights.

So yes, I too praise Ernie's proposal to eliminate the "copy" right within copyright. I too agree with Ernie and Joe and the Register that we need a more efficient way license online content. But there is an important freedom that neither address that I think copyright needs to address: the right (for free or under fair and nondiscriminatory terms) to build upon culture.

There's a cool new documentary brewing about the free software, free culture movement. I don't like to point to media with me in it, and this does, but I am very funny looking in it, and there is a fantastically moving set of quotes by RMS. Check it out here.

Great interview with Negativland's Don Joyce and Mark Hosler. Favorite line: "Copyright law does not distinguish between sampling and counterfeiting. That's just stupid." (Thanks, Fernando!) (No, not that Fernando!).

Old news: The Economist has again repeated its proposal that copyright terms be restored to the original Statute of Anne term: 14 + 14. Way too radical (but on the right track!) (Thanks, Matthias!)

From Victor Stone, the amazingly talented musician/coder who is building ccMixter.org:

About 36 hours after the London bombing ASHWAN and Curious uploaded a rap in reaction specifically to the bombing. Almost immediately they were asked to upload the a cappellas. A few days later the remixes are starting to come in...

http://ccmixter.org/file/ASHWAN/40

Jon Potter has a response to Jamie Boyle's piece about the Broadcasting and Webcasting Treaty under consideration at WIPO. Notice how Potter's justifications are tied exclusively to "piracy." And notice (now that I tell you) that those (very few) corporations pushing this treaty have consistently rejected a treaty limited to "piracy." Not also the absurdity in this (non-IPR based) right being granted for 50 years. And note that practically every major rights organization has opposed the treaty.

A lot of smart IP sorts have started a blog about copyright. The title says it all: Copyrightwatch.ca: Debunking copyright myths, one post at a time. Myths or not, there's lots of very thoughtful stuff there.

Tickets are on sale Tuesday, November 8, here.

Apparently, the "Progress" and Freedom Foundation has joined the publishers in the GooglePrint case. James Delong filled the inbox of countless many to inform them about "Google Print and the Aerospace Analogy: Lessig's Counterfactual History." The whole missive was a response to a blog post I had written when Google was first sued.

As DeLong writes (thanks, Neil!):

In a recent blog about Google Print, Stanford Law Professor Larry Lessig repeats a story that is also at the center of his book Free Culture. He cites the 1946 airplane noise case of U.S. v. Causby as clearing the way for the air age by overthrowing the old legal doctrine that a landowner's property extends to the heavens, thus making the airspace into a commons. He then draws an analogy to Google Print, arguing that the old copyright regime must be similarly overthrown in the name of the new commons of the Internet Age. Unfortunately, his depiction misstates the issues in Causby, ignores the fact that the landowner actually won, and fails to mention that the case stands for close to the opposite of the principles for which he cites it.

Who could have thought such drama could be generated by a blog post? Or that such mistaken drama could be generated by a blog post?

My use of the story -- in both contexts -- is perfectly apt, and correct. Here's the passage I quoted from the case in the book, and referred to in the blog post:

It is ancient doctrine that at common law ownership of the land extended to the periphery of the universe - Cujus est solum ejus est usque ad coelum. But that doctrine has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim. 328 U.S. at 261.

The use I've made of this paragraph is simply to remark an old property rule