Lessig

The Colorado Governor Bill Owens has vetoed the MPAA's super-DMCA passed by the Colorado legislature. Very cool.

The Economist (that magazine that called for a 14 year copyright term) has a great piece about spectrum. The piece nicely carries this "Commons vs. Property" debate one step further. As Yochai Benkler is increasingly pushing the point, the problem with the "commons" metaphor is that it itself is a "property" metaphor -- just a form of "property" where everyone has a right to access.

But that, Benkler argues, is misleading. The question we should be asking is not which form of property makes sense -- private or commons -- but instead a much more libertarian question: Do we need any "regulation of the spectrum" at all? Or put better: Given today's technology, is there any reason to believe that the market operating on its own, without any substantial form of regulation, won't figure out how best to develop devices that radiate? Can't we depend upon the market to solve whatever coordination problems there are?

I've already tagged Benkler "perhaps the best communications theorist of our generation." I shouldn't have said "perhaps."

Judge Posner is one of the three judges hearing the appeal this morning in the Aimster case. This should be very interesting.

Nicely summarized here.

So this is very cool -- the 7th Circuit posts mp3s of its argument, so you can hear the argument in Aimster here. (Thanks to Howard Bashman.)

The White House has announced a new spectrum initiative.

Dave and the Berkman Center folks have been building a "user agreement for weblog hosting at Harvard Law, and a privacy policy. We hope it could become a template for other universities, schools, libraries, perhaps even businesses." Comments and help invited.

It was an extraordinary week last week at the Supreme Court. Most of the press has focused on the Michigan affirmative action cases, which were of course important, and rightly decided. But I continue to be struck by the profoundly important decision in the Lawrence case, which found it beyond the government's power to regulate the private, consensual sexual behavior of adults.

There will be gaggles of law review articles written about this, and lots of speculation about the continued life of privacy jurisprudence. But I was struck by a more tangible reaction to the decision that says a great deal about how it feels to those it affects.

We're living in the Castro in San Francisco while renovations on our house are completed. As anyone who has driven through this neighborhood knows, at Market and Castro there is a huge Gay Pride flag that flies every day of the year. Huge -- maybe the largest flag I have ever seen.

I was out of town on the day of the decision. But I am told that the day after Lawrence was decided, the Gay Pride flag came down. An American flag was raised in its place.

It was an extraordinary moment that said more about the importance of this decision than any commentary ever could.

The California Supreme Court has decided that Hamidi did not trespass when he emailed complaints about Intel to Intel employees.

Eben has written a wonderful (and short) piece mapping the possible claims SCO might be making against GNU/Linux, and why these claims have likely no basis in the law. Read the essay here.

Red Hat has apparently filed suit against SCO, and promised a fund to protect GNU/Linux.

One of the most frustrating aspects of Eldred was the crudeness, in many places, of the legal anaysis by the government, and courts. Distinctions that should have been important were ignored or glossed over. Arguments making distinctions that should have been important were just glossed over.

It is therefore extraordinarily encouraging to read this by the Court of Federal Claims in the case of Figueroa v. US. Judge Futey is exceptionally careful and subtle in his analysis of the claim about patent fees. I don't know enough about the non-Eldred parts here, but the constitutional analysis is very well done.

An FCC commissioner who gets it — read here, and spread the word.

This is good news (ok, not for Halderman but for the law). SunnComm says it is suing Alex Halderman (Ed Felten's student) because he posted a paper pointing out the weaknesses in SunnComm's copy-protection software. I'm sure there will be a world of legal support to help Halderman establish what should be an obvious point: tell the truth is not yet a crime, and (fortunately for most professors) writing even wrong papers is not either.

UPDATE: Oh well. Looks like SunnComm has come to its senses. No lawsuit after all.

It is so rare that I am in 100% agreement with the Cato Institute, but there have been important examples in the past (Eldred). Here's another. There's a great essay by Doug Bandow titled "Don't Ban Technology to Solve Copyright Problems," which appeared in the Washington Times but is not yet on Cato's site here. Stay tuned, and stay right (as in correct) Cato.

The FCC has released more spectrum in the 5 ghz band, and established minimum usage rules for that free spectrum. The decision is applauded from Microsoft to the New America Foundation and Media Access Project.

And applauded it should be. There is much more to be done (as the NAF and MAP release argues), and a danger that this new free spectrum will lead many to think enough has been done. But the FCC should be praised for moving quickly and rightly.

Donna's got a great piece on Congressman Kucinich's criticism of Diebold abuse of copyright.

In an underreported event, Diebold has apparently asked the court to drop its threats against students who have spread material about the failings of its machines. EFF and the Stanford CIS were representing the Swarthmore students. While we await word whether the court will allow Diebold to walk away from its threats, thanks to the Stanford CIS and EFF (which, unlike CIS, can take donations).

CongressDaily (a publication that politicians read on the Hill but which is not available to the rest of us online) has a story about Senator Corzine holding up the pro-spam "anti-spam" bill to insist that the FTC at least study the viability of bounties as part of the solution to spam. Senators have the power to "hold" a bill despite its unanimous approval. Very cool power, that.

President Bush has decided to reverse his totally unprincipled decision to impose steel tariffs.

So wrote Judge Ginsburg in the case decided today, RIAA v. Verizon Internet Services. The RIAA has lost a big one. The DC Circuit Court of Appeals says the DMCA does not authorize subpoenas forcing an ISP like Verizon to reveal the identity of filesharers. Read the clear and convincing analysis of Judge Ginsburg here.

I'm sorry it has taken me so long to finally read the Seventh Circuit's opinion in Assessment Technologies v. WIREdata. Judge Posner, writing for a unanimous panel, rejects an "attempt of a copyright owner to use copyright law to block access to data that not only are neither copyrightable nor copyrighted, but were not created or obtained by the copyright owner." In the collection of great cases showing the limits of copyright -- and why limits are sensible -- this should rank highly (indeed, much higher than the Supreme Court's effort in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345-48 (1991).)

Posner is a friend. I was his clerk. But the best thing about being his clerk is that he does his own writing, which means the clerk's job is just to disagree. But in the area of copyright and patent, I've found less and less to disagree with. Indeed, if you want a brilliant and balanced analysis of a wide range of IP issues, from the perspective of economics, see his (and Professor Landes') latest book, The Economic Structure of Intellectual Property Law.

An amazing week continues. First it was the victory in the RIAA case. Now news that Norway has acquitted Jon Johansen again. Stay tuned to the channel that has helped make much of this freedom possible -- EFF, and remember, it is the time for giving.

(BTW: I'm a board member at EFF, and my job is supposed to include asking rich people to give lots of money to support EFF. As I hate the possible implicit quid-pro-quo in asking for lots of money, help me Dean-ify fundraising at EFF. Lots of small contributions, soon. Or, alternatively, if you'd like to give big, I guess that's ok too.)

Wallace McLean sent the following:

Today, January 1, 2004, every unpublished document whose author had died on or before December 31, 1948, has passed from copyright into the public domain in Canada.

As of today, millions of pages of archival heritage, in hundreds of
archival institutions, have become the common property of all Canadians.

You are free to make use of this heritage in any way you want, by
publishing, digitizing, compiling, translating, adapting, dramatizing, or
treating the material in any other way. It's yours to enjoy and share with
whomever, whenever, in whatever way you want.

Also today, the published works of people who had the good sense to die in
1953 have become public domain in Canada and any other country which
retains the life+50 rule for copyright term. These people include Polish
poet Julian Tuwim, British mathematician Alan Turing, Dutch children's
author Hugo Pilon, Russian author and Nobel laureate Ivan Bunin, Soviet
dictator Joseph Stalin, metaphyisical author Baird Spalding, Norwegian
novelist and Nobel laureat Knut Hamsun, playwright and Nobel laureate
Eugene O'Neill (1953 was a bad year for Nobel laureates!), Irish poet and
Yeats' one-time lover Maud Gonne, Welsh poet and playwright Dylan Thomas
(bad year for poets!), country music singer-songwriter Hank Williams,
French author Hilaire Belloc, American historian J.G. Randall, Russian
composer Sergei Prokofiev (bad year for Russians!), founder of Saudi
Arabia Abd al-Aziz ibn Saud, Maria Montessori of school fame, and many more.

Happy Public Domain Day!

Here in America, we'll celebrate our next public domain day in, um, 15 years.

So an underplayed aspect of this campaign has been how the Democratic candidates would differently select the Supreme Court. On NPR's debate, Senator Lieberman pointed to Justice Souter as a model. Congressman Kucinich plugged Justice Ginsburg. I've gotten a couple pings asking what the right answer is.

Hard question for me. Of course neither Ginsburg nor Souter were on the correct side (or the right side) of Eldred, but I certainly think Justice Souter is a model justice -- serious, hard working, unburdened by ideology, prepared. I never quite get the principle that guides Justice Ginsburg's choice between activism and not, or principle and not, so I'm waiting to see the genius in that selection by President Clinton.

Justice Breyer of course wrote a brilliant dissent in Eldred -- brilliant, though not effective. He was proud of the decision's embrace of economics as the standard by which the Sonny Bono Act was judged. But while I'm a fan of the result, I've been too deeply affected (scarred?) by the originalism/textaulism/fidelity theories of Scalia to be enamored of that method.

In my view, perhaps the best sitting justice is a Republican appointee -- Stevens. And if candidates are looking for what makes the best the best, then it is certainly his judges' judge-like character. There's no simple line that predicts Justice Stevens' result -- certainly not a political line. And if there is any quality this Court needs, it is that -- following a line that does not seem a political line.

The most impressive judges not sitting on the Supreme Court are also, um, Republicans. (What party am I again?) Judge Kozinski is a great judge -- too young when appointed, but someone who has matured brilliantly in the job. And while his views about how to the interpret the constitution make me cringe, history will record the greatest judge of our time as Judge Posner. But I doubt that this is the time that a President from either party will pick greatness as the reason to select a Justice.

News from the oral argument in the Grokster case yesterday is quite good. The argument on our side of the debate was excellent. Fred was extraordinary, and the judges seemed perfectly tuned to the issues. EFF's got a recording of the argument here, and Ed Lee's got a nice write up on his blog as well.

The tide is turning.

The Mayor of San Francisco has decided that a state law is unconstitutional under the state constitution, and has therefore ordered city clerks to disobey the law and obey the constitution. This troubles my friend Dan Gillmor, who on last count was right about everything else. And it is an action by a mayor, who on last count was wrong about a bunch of very important things. So who's right now? I try to answer that in the extended essay that follows.

I said my analysis of the Mayor's decision turned upon California state law. Turns out California state law turned my analysis into mush. Read my comments towards the end here.

As reported, we survived the government's motion to dismiss in Golan v. Ashcroft. Thanks to the excellent work of lawyers at Wheeler, Trigg & Kennedy, we've now convinced the court of the importance of discovery to demonstrate the actual harms caused by "restored" copyrights.

Aaron has built a site to help us collect stories, some of which may become part of the suit. Please help spread the link: the beginning of an archive to the public domain.

Ernie has put together a line-by-line rebuttal to Senator Hatch.

Stefan Bechtold writes that the EU Commission (ok, a staff report) has decided that copyright terms for recordings in Europe should not be increased beyond the current term (50 years after publication), despite the growing pressure of recording labels to increase the term to "save" (as they put it) some of the most important Rock from entering the public domain. The story is getting press in Europe. (Independent, BBC).

This is an extremely important development in this battle. For once, a government-related entity has recognized the truth (or at least, not had its recognition crushed). I've already been talking to archives that are working on the idea of releasing all the recordings they can when they pass into the public domain on January 1, as a way of demonstrating the value of a wide range of work becoming available, unencumbered, for widespread use.

Here in the U.S., we'll be able to celebrate the same in, um, 2019. Till then, for your listening pleasure, an oldie (first posted here last July): a 1937 radio program from the Columbia Workshop about creative works passing from the "copyright lane" into the "public domain".

So today copyright scholar Joe Liu at Boston College asked a room full of law professors an interesting question. What did we think copyright would look like in 8 years? Here were some of the main categories of predictions (some contradict):

Here's the question: What would the Induce Act look like if it balanced the interests of copyright owners and technological innovators? Here's what: the Inducing Innovation Act.

Comments welcomed, and thanks to all those who helped work on this.

The UK Parliamentary Office on Science and Technology is preparing a POST note on 'Open Source'. (No, I didn't know what a POST note is exactly either, but check it out here.) The author is looking for helpful comments. I've created a temporary email address for David Berry. You can send him comments at that address for a week.

Christian Ahlert and Thomas Hoeren have translated a Munich Court decision about the enforceability of the GPL in Germany. Ahlert also has an introduction, to the case and to Creative Commons, and Professor Hoeren has written a commentary.

A district court in the Southern District of New York has struck down the anti-bootlegging provision of the copyright act. There is a new report here. I should have the opinion up soon. (Disclosure: I did pro bono work on this case.)

UPDATE: I have a scanned pdf of the opinion. (Warning: It is huge (64mg)). (Thanks to Joe Gratz, here's a very readable compressed version at about 500k).

The opinion is fantastic. The Court concludes (1) that antibootlegging regulations are "copyright-like" regulations, and thus are within the scope of the Copyright Clause, (2) that this regulation violates the Copyright Clause because it doesn't have a limited term (citing Eldred (sweet justice)) (And remember, the 11th Circuit's case expressly did not consider the limited times argument), and (3) that Congress can't use the Commerce Clause to do what it can't do under the Copyright Clause, so long as the subject matter is "copyright-like."

I have always been a fan of Judge Baer, but never more than today.

And were I to use this space to self-promote, I might point to Businessweek's pick of the top ten books of the year. But I won't waste your time with that.

I walked out of my constitutional law class, climbed into a car to go to a plane to fly to Chicago to fly to Sao Paolo to fly to Porto Alegre to get into a car to come to this. Brazil is hosting the World Social Forum, and Barlow and I will be on a panel with Manuel Castells and Gilberto Gil on Saturday. But Thursday night, we visited the Youth Camp, which in part this year is devoted to demonstrating and developing tools to support free software and free culture.

We arrived in the middle of a concert. Gil was asked to speak. As he went to the mic, the tent fell silent. Hundreds were packed into a tiny space. Gil began to describe the work of the Lula government to support free software, and free culture, when a debate broke out. I don't speak Portuguese, but a Brazilian who spoke English translated for Barlow and me. The kid was arguing with Gil about free radio. Two minutes into the exchange, about 8 masked protesters climbed onto chairs on one side of the tent, and held posters demanding free radio. A huge argument exploded, with the Minister (Gil) engaging many people directly, and others stepping in to add other perspectives. After about 20 minutes, the argument stopped. The band played again, and then Gil was asked to perform. For about another twenty minutes, this most extraordinary performer sang the music he's been writing since the 1960s, while the whole audience (save Barlow and I) sang along. When the concert was over, Barlow, Gil and I were led out of the tent. It was practically impossible to move, as hundreds begged Gil for autographs, or posed for pictures. At each step, someone had an argument. At each step, Gil stopped to engage. Even after Gil was in the car, some kid rapped on the window, yelling yet another abusive argument. Gil, with the patience of a saint, opened the window, and argued some more.

This was a scene that was astonishing on a million levels. I've seen rallies for free software in many placed around the world. I've never seen anything like this. There were geeks, to be sure. But not many. The mix was broad-based and young. They cheered free software as if it were a candidate for President.

But more striking still was just the dynamic of this democracy. Barlow captured the picture at the top, which in a sense captures it all. Here's a Minister of the government, face to face with supporters, and opponents. He speaks, people protest, and he engages their protest. Passionately and directly, he stands at their level. There is no distance. There is no "free speech zone." Or rather, Brazil is the free speech zone. Gil practices zone rules.

Even after the speech was over, the argument continues. At no point is there "protection"; at every point, there is just connection. This is the rockstar who became a politician, who became a politician as a rockstar.

I remember reading about Jefferson's complaints about the early White House. Ordinary people would knock on the door, and demand to see the President. Often they did. The presumption of that democracy lives in a sense here. And you never quite see how far from that presumption our democracy has become until you see it, live, here. "This is what democracy looks like." Or at least, a democracy where the leaders can stand packed in the middle of a crowd, with protesters yelling angry criticism yet without "security" silencing the noise. No guns, no men in black uniform, no panic, and plenty of press. Just imagine.

The Stanford Center for Internet and Society is hosting a conference on April 30, reviewing the cyberlaw day in the Supreme Court. Sign up here. Here's their announcement.

On March 29, 2005, the U.S. Supreme Court heard arguments in two cases that together will greatly determine how government can and will regulate the Internet in the future, and the impact that the public interest will have on the development of cyberlaw over the next decade.

In MGM v. Grokster, the Court will decide whether copyright holders can veto consumer electronics and computing innovations that upset the content industries' prevailing business models, even where the technology's non-infringing uses provide substantial benefits to consumers. The question is whether consumer demand for new and better products will drive technological development, or copyright owners' demand for control will retard it.

In Brand X v. FCC, the Court will decide whether the FCC should retain the option to regulate cable modem services to promote open access to broadband lines, universal service and network neutrality, as it did in the early days of the Internet when most people connected over common-carrier telephone lines. The question is whether tomorrow's communications services will be defined by citizen choices or by the business interests of a handful of cable broadband companies.

At Cyberlaw in the Supreme Court, the Stanford Law School Center for Internet and Society will convene a discussion of these cases, their broader implications, and what effect the pending Supreme Court decisions could have on the public interest. Panels of attorneys litigating and arguing these cases, the parties affected by them, the policy advocates whose work will begin once the Judges rule, and the people thinking about what the legal landscape will look like for the next ten years will discuss both cases and the impact the decisions will have on the future.

All the coolest issues (including Nanotech), in just one day.

Info. Register.

The American Library Association, with the help of PublicKnowledge, has won its case challenging the FCC's Broadcast Flag regulation. The opinion is here and fantastic.

PK had to pay for the lawyers to litigate this case. This is a big victory. Supporters should consider returning the favor with some support.

So it's Saturday morning here in Australia, and I'm reading my email in reverse order. First the fantastic news about PublicKnowledge. Now this: The Stanford Center for Internet and Society has won an important case about anonymous speech. An anonymous participant in an online chat posted comments critical of Ampex and its chairman. They sued for defamation. The poster sued under the California anti-SLAPP (strategic lawsuit against public participation) statute. Ampex tried to dismiss and run away. The Court of Appeals ruled at first that there remeained anti-SLAPP jurisdiction. The District Court then refused to award fees. The Court of Appeals has now reversed the District Court and ordered fees. The case was argued by a law student. It will have an important effect in stopping the abuse of process against online critics.

William Patry has a new blog on copyright, which has covered a range of interesting issue. He's got an interesting link to the case Kathleen Sullivan recently won in the Supreme Court, Granholm v. Heald, finding that state limits on the sale of out of state wine violated the dormant commerce clause, the 21st Amendment notwithstanding. Patry suggests a link to database legislation, which seems to me a bit of a stretch (I think his view of database legislation is correct, but not sure it follows from Granholm.) He's also got a very interesting review of the anti-bootlegging statute, informed by his experience on the Hill when these were passed.

So the Berkman Center is sponsoring its annual iLaw program in Cambridge, MA, June 22-24. The program is great fun, and you even get to live in the dorms! Registration is here. I'm hoping we move these programs overseas, exclusively. But I'm just (one of) the teachers. There are scholarships and group rates, so ask.

NOTE: Reservations for rooms are required. Dorm rooms are available but you must check in with Wendy Koslow at the Berkman Center about availability.

Senator Fiorello Cortiana reports that the Patent Directive in the EU Parliament has been defeated -- 650 to 14.

The referendum that I described earlier has passed. (Thanks, Mike!)

There's been lots of interesting commentary about Microsoft's recent decision to submit its Office Document Formats to ECMA for "open standardization." That's good news, depending, of course, on the details.

But this is even better news: Microsoft has also promised that "it will not seek to enforce any of its patent claims necessary to conform to the technical specifications for the Microsoft Office 2003 XML Reference Schemas."

This shows some hope to the complex of issues around patents affecting software in the land of Microsoft. Even opponents of software and business method patents will advise companies to secure them -- given others can as well. But behavior like this goes a long way to neutralizing the negative effect of such patents. No license. No agreement. Just an unequivocal promise -- at least with respect to those who don't sue Microsoft.

So there's a corrected version of the Google Book Search video here on youTube. Very cool video sharing service, just ripe for CC licenses.

The essence of the argument here builds upon the "market failure" justification for fair use: We recognize fair use where there's a prominent market failure. Here, the market failure is caused by the insanely inefficient property system copyright law is. Given that, the use Google makes is plainly "fair use."

Update: This is an updated version that substitutes a photograph. I stupidly used a photo without checking the license. The substituted photo is a beautiful image by fuzzbabble on Flickr. My apologies to the very talented Andrea K. Gingerich.

So the British are considering extending the terms of copyrights for recordings from the current term of 50 years to 95 years -- this to "harmonize" with the US, after the US extended its term to "harmonize" with Europe. Anyway, you know my views about term extensions for existing works, so I won't repeat all that here.

But last night in the British Parliament, there was an extraordinary breakthrough in thinking about this issue. While the best rule would be that copyrights of existing works would never be extended, a second-best rule would be that, at a minimum, any extension should be limited to those copyright holders who take steps to claim that extension. And so has Mr. Don Foster now proposed.

This is the first such proposal that I've seen a government official make. (If I'm wrong about that, please let me know.) But it is fantastic progress in the second-best world we inhabit.

The Second Circuit Court of Appeals' decision in Graham v. Dorling Kindersley Limited
is fantastic. Could this signal general progress?

As you may recall, the Stanford Center for Internet and Society launched a "Fair Use Project" this year. The focus of this project will be litigation to help mark (and push a bit) the boundaries of fair use. We formed this project because of a large amount of advice we were giving especially in the context of film. But the first case we filed was in defense of a scholar's ability to quote material from Joyce in an academic work. (The story is described in this New Yorker article.)

The Project is led by a former partner from Bingham McCutchen, Anthony Falzone. We're now looking for another attorney to work with him. Information is available at the CIS site.

Over the next couple months, I'm going to try to put together short presentations outlining arguments for six Internet-related proposals that I believe Congress should enact over the next year. The trailer-description for each follows:

Copyright: Orphan Works: Orphan Works legislation is critical. Nonetheless, I strongly oppose the Copyright Office's "Orphan Works Proposal." I think it is extraordinarily unfair to current copyright owners, and insanely inefficient. My proposal applies an "Orphan Works Maintenance Requirement" to older works only; the requirement is a form of registration.

Copyright: Remix Culture: Congress should carve a robust exemption to the law for non-commercial remix. Commercial use of such remixes should be regulated by a baseline statutory license.

Network Neutrality: No surprise: I support Network Neutrality legislation. Unfortunately, too many of the reigning proposals are, imho, radically too difficult to enforce. I'll propose a much simpler rule to enforce that would achieve the legitimate objectives of NN.

Spam: The email system is broken. A bazaar of private remedies to deal with spam now clog the system to defeat many of its original objectives. I'll propose a modified version of an earlier idea to deal with this problem -- a problem that costs the American public many times the total profits of the recording industry, but has gotten but a fraction of Congress's attention.

Harmful to Minors Material: There's a simple and minimally burdensome way Congress could protect kids online from material deemed "harmful to minors." Not perfectly, but certainly better than the current regime. And without constitutional risk.

Deregulating Spectrum: Crude radio technology used to make regulating spectrum necessary. Smart radio technology makes it -- in many cases at least -- unnecessary. We should be pushing to deregulate where technology makes that possible.

I hope these presentations will be no more than 15 minutes long. The first presentation will be posted later today. Unfortunately, it is about 35 minutes long.

For almost a decade now, many of us have been pushing for copyright reform that would address the problems of orphan works. That was a key motivation behind the attack on the Sonny Bono Copyright Term Extension Act. It was the focus of my op-ed in the NY Times after we lost in that attack. That op-ed proposed one system for dealing with orphan works -- register your copyright after 50 years and pay $1; if you don't the work passes into the public domain. That proposal was the basis of Congresswoman Lofgren's "Public Domain Enhancement Act," which was partly responsible for Senators Hatch and Leahy asking the Copyright Office to study the problem of "orphan works."

The Copyright Office's report is brilliant. Its proposal is less brilliant. Its essence is that a work is deemed an "orphan" if you can't discover the copyright owner after a "reasonably diligent search." If the work is deemed an orphan, then the copyright owner's rights are curtailed.

I think this both goes too far, and not far enough.

Too far: By applying the remedy to all works immediately, the work imposes an unfair burden on many existing copyright holders -- who have followed a rule which since 1978 has said, don't worry about such details; it puts an especially unfair burden on foreign and unpublished copyright holders. In my view, photographers and other existing copyright holders are right to be outraged at the proposal. Hiding under the cover of "reasonably diligent search," much of their work will be -- unfairly -- threatened.

Not far enough: The trigger to the Copyright Office's Orphan Works Remedy is whether a copyright owner can be found with a "reasonably diligent search." That standard is just mush. The report outlines six factors to be considered in determining whether a search is "reasonably diligent." The effect of this complexity is simply make-work for lawyers. Libraries and archives will be unfairly burdened. Users won't be able to achieve any real security.

The alternative I propose is a kind of copyright maintenance procedure (like patent maintenance). It differs from the Copyright Office's proposal in three critical ways:

First: It applies just to old works, not to new works. For works after enactment, copyright owners get a 14 year grace period where they need not worry at all about any orphan work requirement. For work published between 1978 and today, there's no orphan work requirement until 2021. And for work published before 1978 (in a time when formalities were the norm), there is no requirement until 2012.

Second: It applies to published "United States works" only -- not to foreign works or unpublished work.

Third: The requirement it imposes after the 14/5 year delay is registration. But not registration with the copyright office; instead, registration with a private registrar approved by the copyright office. No government run registries here. Instead, something more like a DNS for copyright.

This chart at the top summarizes the differences.

You can download a one-page description of the proposal here.

You can download or stream the (35 minute) presentation here, or watch it on Google Video below.

You'll recall Shloss v. Sweeney, the fair use challenge brought by the Stanford Center for Internet and Society's "Fair Use Project" last June, on behalf of Carol Shloss, a Joyce scholar at Stanford. The case challenges the abuse of copyright by the Joyce Estate, interfering with the academic work of Joycean scholars. (The story of that abuse is recounted in this fantastic piece in the New Yorker.)

On Friday, we passed an important hurdle. The district court has denied the defendant's motion to dismiss. The decision was quick, and is very well and completely reasoned. Judge Ware did permit the estate to strike a paragraph from the complaint (we were probably getting wordy in any case). But every element of our complaint remains -- including, importantly, the copyright misuse claim.

Most of the work in the case has been handled by Stanford CIS Fellow David Olson. Since joining CIS to head the "Fair Use Project," Tony Falzone has also become a key player in the case. Tony argued the case before Judge Ware. We've also had great support from a Joyce scholar, and lawyer with Howard Rice, Robert Spoo, as well as the firm of Keker & Van Nest. These attorneys, and the others at CIS (including many extraordinary students) deserve a great deal of thanks.

It is rare for the press to talk about issues in the copyright beyond "piracy." The New Yorker piece is a nice exception. My hope is more cases like this will lead people to recognize the many more issues here beyond whether people "take" music for free.

We (Stanford's Fair Use Project) got word of another great success today. We're representing the filmmakers of Ben Stein's Expelled. The film is an attack on the culture that forbids "intelligent design" from being considered seriously. (I'm a member of that culture.) The film uses a 15 second snippet of John Lennon's "Imagine." Yoko Ono was not happy with the use, and sued. In a decision issued this morning, Judge Stein denied Ono's motion for an injunction against the film, finding we were likely to prevail on our fair use defense.

To borrow a bit more:

"Imagine all the people
Sharing all [at least some of] the world[s]."