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.