Lessig

I want to thank Lawrence for letting me participate here. Yes, I'm running for US Senate (http://GrannyD.com) at the age of 94 against a Bush Yes Man and debate coach, Sen. Judd Gregg. I will debate Gregg next week and am nervous about it, though I certainly have the facts on my side, while his major accomplishments are the Iraq War, the deficit, the fact that the largest employer in New Hampshire was Digital Equipment when he began his term (it is now Wal-Mart), and the fact that you could eat the fish in our streams when he began his term, and they now have enough mercury to tell their own temperature! I'm coming from behind, to put it mildly, but some last-minute TV, a little advice from Joe Trippi, and I think I we can make it interesting.

I thank the many who have responded to my first blog! This is fun. I was taken to task by one of you for mentioning that Digital Equip. was the largest employer when Judd Gregg was first elected, compared to Wal-Mart, presently.

I agree that Mr. Gregg did not personally upend Digital and invite Wal-Mart in by night. Each company has responsibility for its own success or failure. Yet they operate within an economic environment, and our leadership makes important differences in what kinds of businesses succeed and fail. Right now, there is no leadership to create an environment where companies whith good-paying American jobs are growing, and where they are helping us close in on our trade deficit--quite the opposite is true. There is much that could be done by leaders, if they would show up to do it, and Mr. Gregg is among the missing.

I know, why am I worried about protection at my age? I really don't want to be labeled a protectionist, but I think there is a happy medium between raw free marketeering and highwall protectionism. My father worked as a laborer in a furniture warehouse in Laconia, NH. He was able to own a house and raise five kids pretty decently. You can't do that anymore, and the reason is that the economy is no longer self-contained in the way that a good system or a good machine can be. Without some containment, it's rather like trying to farm without scarecrows, on the theory that the hungry birds are part of the free market of the farm, or letting the irrigation go wherever it likes, without channels to keep it from seeking the lowest point of the field. Healthy systems have their boundaries.

Granny D here. I love this blog world--you make a general statement and then some people write a book for you about it. Thank you all for your comments on protectionism. I am totally persuaded and will now stop pruning my garden, leaving behind my old fashioned notion that editing and flowering are necessary partners.

What does continue to bother me, however, is the unsaid notion that labor is one of the several components of manufacturing, when, in fact, it is us. Economists (and their hunchbacked evil blogger assistants) tend to make such deadly abstractions that they lose sight of this, as if the Economy were a demigod or at least a being unto itself, whose health we must serve by sacrificing our own.

Granny D again. I'm just two nights away from my CSPAN debate with Senator Judd Gregg, who seems to want to keep his Senate seat, and I'm very nervous. It is hard for a 94 year-old woman from the woods to think about going against a career politician lawyer, but I got myself into this mess.

We get to ask each other four questions. I think I know what I will ask him (see http://GrannyD.org), but I can't imagine what he will ask me. If he hired you to come up with a question or two, what would you come up with? I'm sure he wants to put me on the spot without looking mean or disrespectful of my age. Any ideas?

Oh, and I VERY much appreciate all the posts in reply to my messages. I am learning a great deal.

Yours, Doris "Granny D" Haddock

I sincerely want to thank the many of you who gave me so much information and so many valuable perspectives on the issues I've raised here. In less than an hour I will go into the lion's den to debate Judd Gregg. He, as you may know, is the fellow who prepped Geo. Bush for his debates. My only hope is that George returns the favor!

Otherwise, we are doing what campaigns are supposed to do before a debate: lowering expectations. That is difficult in my case, as we are already just where a campaign would want to be. Going for me are, let's see, age 94, emphysema, arthritis, nearly deaf, no experience debating, didn't read the newspapers this morning. All that is finally an asset!

Love to you all!

Doris (http://GrannyD.com)

Well, the debate was fun, but frightening, of course. There were so many times when I felt like a fool--not finding my words or letting some golden opportunities just slide by. But it was wonderful to be finally looking him in the eye and speaking the truth right at him. WMUR has an online poll of viewers. Those who though I won: 79%. Those who though Judd Gregg won: 20%. So I thank my many coaches on this site, and for all your encouragement, which was very real and very strengthening to me.

And to Professor Lessig, I do so thank you for your generous hospitality here. I shall look into getting one of these blogs for myself one day soon, and I will always thank you for teaching me how to do it.

A big walk and three speeches tomorrow, so I'm to bed!

Love again to all,

Doris

Larry has been extremely generous in providing me this week-long opportunity to use his blog to explore some controversial questions involving contemporary intellectual-property law. I’m grateful to him – and to all of you who have offered reactions to my suggestions and questions.

Terry Fisher

I'm gone to Italy today to help launch Creative Commons Italy. Through Saturday, Geof Stone will be guest blogging about his new book, In Perilous Times. He's new to this form. Welcome him well.

How many of you think we live in perilous times? I agree (with those of you who think we do). For the rest of you, think again. We live with the ever-present threat of another terrorist attack. On 9/11, you were shocked. If another such event were to occur five minutes from now, you would be horrified, but not shocked. The expectation now rests just under your level of consciousness.

Moreover, we are engaged in an ever-more disturbing war in Iraq. Last night, I watched the movie Fog of War (the Robert McNamara documentary). The similarities in the depth of American foreign policy misunderstandings between the Vietnam War in 1966 and the Iraq War in 2004 are stiking, and unnerving. There is much to fret about. I want to make it worse. I want to give you something else to worry over. You should be losing sleep about the security of your civil liberties.

The United States has a long and consistent pattern of unduly restricting civil liberties in time of war. Time after time, we have panicked in the face of war fever. We have lashed out at those we fear and allowed ourselves to be manipulated by opportunistic and exploitative politicians. We did this in 1798, when we enacted the Alien and Sedition Acts, during the Civil War when Lincoln suspended the writ of habeas corpus, during World War I when the nation brutally suppressed all criticism of the war and the draft, during World War II when we interned 120,000 individuals of Japanese descent, during the Cold War when we humiliated, abused and silenced tens of thousands of individuals for their political beliefs and associations, and during the Vietnam War when the government engaged in an aggressive program of surveillance, infiltration, and surreptitious harassment designed to "exposre, disrupt, and neutralize" antiwar dissent.

We have made some progress over the past two centuries. We are less likely to do some of these things today than we were in 1798, 1863, 1917, 1942, 1950, or 1968. That is a cause for celebration. But that progress is fragile. The forces unleashed in wartime are extremely powerful, and the fear, anxiety, anger, and vulnerability that war entails can quickly translate into persecution and oppression. Certainly, we have seen warning signs of this in some of the actions of the Bush administration since 9/11. Imagine what might happen if we were now to suffer a succession of six 9/11-like attacks over the next six weeks.

Can we learn the lessons of history? Can we avoid repeating the mistakes of the past? Given the pressures and fears of war, can we discipline ourselves both as individuals and as a nation to respect civil liberties even in a time of war? And is it even sensible to talk seriously about civil liberties in wartime? What do you think?

Lots of interesting comments and questions. Let me go back to the beginning, to a time less than a decade after the United States adopted our Constitution. In 1798, there was a bitter political division in the young nation between the Federalists (led by John Adams and Alexander Hamilton) and the Republican (led by Thomas Jefferson and James Madison). In the elections of 1796, the Federalists had retained control of both houses of Congress and Adams had defeated Jefferson by a scant three electoral votes. It's important to understand that at this time in history Americans were deeply uncertain about the nation's future. Would democracy work? There was no good precedent. It was truly an experiment, and no one was sure the nation wouldn't simply fall apart. The Federalists represented the propertied class. They were very concerned about stability and security, and were very anxious about the passions and irresponsibility of the common man. The Republicans exalted liberty over security and were deeply suspicious of the Federalists.

At this time, a war raged in Europe between England and France. The United States tried to maintain its neutrality so it could both avoid war and continue to engage in commerce with both all sides. But in 1798 the United States entered into a treaty with England that infuriated the French. Adams put the nation on war footing. The Federalists gave him a larger army and a larger navy. We were on the brink of declaring war. The Republicans were furious. They were much more sympathetic to the French (who had overthrown their monarchy) and much more hostile to the English (who were still ruled by a monarch). It was in this context that the Federalists enacted the Alien and Sedition Act.

The Alien Act empowered President Adams to arrest, detain, and deport any non-citizen he found to be a danger to the security of the nation. The individual was given no right to a hearing and no right to present evidence in his defense. The Republicans objected that this was unconstitutional; the Federalists responded that aliens had no rights under the United States Constitution because they were not part of "We the People." The Sedition Act effectively made it a crime for any person to criticize the President, the Congress or the Government of the United States. The Republicans vehemently object that the Act violated the First Amendment; the Federalists argued that in time of war it was essential to stifle criticism of the government because if the People lost confidence in the government they would not make the sacrifices war demands.

The Federalist prosecutors and judges used the Sedition Act exclusively against Republicans, especially against Republican congressmen and editors who criticized the President. Although the Federalists argued that this legislation was necessary because the nation was on the brink of war, the real reason the Federalists wanted it was to silence Republican criticism and thus to ensure that Adams would defeat Jefferson in the election of 1800.

The plan backfired. The American people rose up in protest against these Act and elected Jefferson. This led to the demise of the Federalist Party. Jefferson pardoned all those who had been convicted under the Act. Fifty years later, Congress declared that the Sedition Act of 1798 was unconstitutional, and the Supreme Court has never since missed an opportunity to declare that the Act was unconstitutional in the "court of history."

There are (at least) two lessons we can learn fro this episode: First, clever politicians will often take advantage of a wartime atmosphere to enact policies that will serve their partisan ends. Second, it will often fall to the People themselves to protect their civil lliberties. They cannot always rely on elected officials or judges to protect them for them.

Do you think any of this is relevant to the present?

Before moving on to the Civil War, it may be useful to say a few words about the special problems posed by dissent in wartime. Criticism of the effectiveness of the military, the preparedness of our troops, the morality of the war, the brutality of casulaties inflicted on noncombatants, the number of American casualties, the wisdom of our generals, and so on can easily be seen as the highest form of patriotism. Indeed, the basic premise of democracy is that criticism of the government improves the quality of decisionmaking. On the other hand, such criticism can readily be cast as disloyal.

Civil libertarians are often puzzled by this, but they shouldn't be. Dissent in wartime may improve the quality of decisionmaking, but it may also and at the same time strengthen the enemy's resolve. An enemy that knows we are divided and uncertain will fight harder than it we are united and resolute. It knows that even if it cannot win militarily, it might win (or at least obtain a more favorable settlement) because of domestic American politics. Thus, for those Americans who are firmly committed to the war, dissenters are acting treasonably because they are encouraging the enemy and arguably putting American lives at risk. Their response to dissenters is essentially, "Can't you see what you're doing? You're jeopardizing American soldiers! Just shut up!"

Moreover, war unleashes profound passions. Thousands of lives are stake. No one whose child or spouse or friend is in combat wants to hear that he or she is risking life and limb for an immoral purpose. And even less are people willing to hear that when the child or spouse or friend is already dead or grievously wounded. There is a powerful need to rally around the troops and to promise that those who have died have not "died in vain." In such an atmosphere, it is inevitable that dissent will be equated with disloyalty and that the line between the two will be blurred. We have seen some of this even in the current period.

It's also important to point out a critical feature of free speech. Few people rationally believe that their decision to sign a petition, send an email, or march in a demonstration will have any effect on national policy. Thus, the benefit to them of speaking out is very small. If they have any reason to fear that doing so will land them in jail, or subject them to government questioning or harassment, or threaten their current or future employment, they will quickly decide that it's not worth the risk to sign the petition, send the email, or march in the demonstration. This is what we mean by "chilling effect." The danger, of course, is not just that a lone individual will be silenced, but that an entire segment of the population that would otherwise be critical of the government will be stifled, thus mutilating the thinking process of the community.

Has any of this actually happened since 9/11?

The most profound civil liberties issue during the Civil War involved Lincoln's suspensions of the writ of habeas corpus. What is the writ? Suppose you are arrested by police or military officers while you're walking down the street. You or your representative has the right to go to a court and seek a writ of habeas corpus. This writ gives the court the power to order the government to justify its action and it gives the court the authority to order your release if it finds that your detention is unlawful. The writ of habeas corpus is the bulwark of our constitutional system. Without it, the executive branch could unilaterally seize you and you would have no right to have an independent branch of government determine whether the seizure was constitutional. You would be completely at the mercy of the President.

Nonethelss, the Constitution express provides that the writ of habeas corpus can be suspended in cases of invasion or rebellion. The Civil War was certainly the latter. Lincoln first suspended the writ in 1861, shortly after the attack on Fort Sumpter. Seccesionists in Maryland had rioted and prevented Union troops from passing through Baltimore to protect the nation's capital from attack. To restore order, which was beyond the capacity of the local law enforcement officer, Lincoln (reluctantly) suspended the writ of habeas corpus and authorized the military summarily to arrest and detain individuals in military facilities.

During the course of the Civil War, Lincoln suspending the writ on eight separate occasions. The most far reaching of these was a suspension in 1863 that applied across the entire Union and empowered military officials to arrest and confine any person "guilty of any disloyal act or practice." As many as 38,000 civilians in the North were arrested by the military during the Civil War under these suspensions. Most were suspected of draft evasion, desertion, or sabotage. Some were accused of seditious utterance.

The most famous of these was Clement Vallandigham, a former congressman and a leader of the Peace Democrats, or "Copperheads." Vallandigham opposed the war. In his view, it made no sense to compel the Southern states to remain in the Union against their will. He argued that the Union should simply let them seceed, rather than fight a bloody war that would eventually kill 600,000 soldiers. He also opposed the draft, the suspensions of habeas corpus, and the Emancipation Proclamation, which he regarded as an unconstitutional executive action. For going a speech in Ohio in 1863 in which he made these points, Vallandigham was arrested by General Ambrose Burnside and tried by military authorities for "disloyal speech" that would cause desertion and rebellion against the Union army. He was convicted by a military tribunal and sentenced to confinement in a military tribunal for the duration of the war.

There was a storm of protest, from Republicans as well as Democrats. Many Republicans argument that we weren't fighting the war in order to destroy liberty in the Union. Lincoln found himself between a rock and a hard place. On the one hand, he didn't want to embarrass his generals by publicly overriding them; on the other he didn't want to turn Vallandigham into a political martyr. His solution: He order Vallandigham exiled to the Confederacy. (This did not please Vallandigham, who regarded himself as a loyal citizen of the United States. He quickly escaped the South and sneaked back into the U.S., where he participated actively in the 1864 Democratic National Convention.)

After the Civil War, the Supreme Court held in Ex parte Milligan that Lincoln had exceeded his powers as commander-in-chief by declaring martial law in those parts of the country (such as Ohio in 1863) where the ordinary civil courts were open and well-functioning.

So, here's the question: More than two years ago, the administration arrested Jose Padilla at O'Hare Airport because government officials believed him to be a potential "dirty bomber." Labelling him an "enemy combatant," the government removed him to a military brig, where it held him incommunicado, with no access to a lawyer, no access to family and friends, with no judicial determination that there was a lawful basis for his detention. The government explained that, even though Padilla is an American citizen who was seized on American soil, he has no right to judicial reivew of his detention because the President has certified that he is an enemy combatant. Padilla, by the way, is still in custody in a military brig.

What do you think? How does this compare with suspension of habeas corpus?

Before we leave the 19th century, a word from our sponsor: Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (W. W. Norton 2004). Buy one in the next six hours and you can read the next entry in this blog ASOLUTELY FREE!!

We tend to think of World War I as a generally popular war, like World War II. Nothing could be further from the truth. After the war broke out in Europe in 1914, the vast majority of Americans wanted nothing to do with it. The saw the carnage of the European battlefields and decided the conflicted implicated no vital interests of the United States. Indeed, Woodrow Wilson was reelected in 1916 on the platform that "He Kept Us Out of War!"

In 1917, however, Wilson sought a declaration of war. The reason he sought to enter the war was to preserve the "freedom of the seas." Under international law, a neutral is entitled to trade with belligerants. The Germans, however, were using U-boats to sink American ships that were bringing munitions, arms, and other supplies to England and France. Ironically, the English and French were also blocking American shipping to Germany. But because Germany had little access to the sea, they could do this my minimg a few harbors and rivers. The only way the Germans could reciprocate was by warning Americans not to trade with English and France, on pain of submarine attacks. Nonetheless, Wilson got his declaration.

Many Americans were angry. They were perfectly happy to forego trade with England and France, rather than get involved in the war. They saw this, not as a "War to Make the World Safe for Democracy," as the president now billed it, but as a "War to Make the World Safe for Armanents and Munitions Manufacturers." People like Emma Goldman, Eugene Debs, and Jane Addams vigorously criticized the decision to enter the war.

Wilson had two problems. First, he had to generate enthusiasm for the war. Second, he had to repress dissent that would undermine morale. To address the first problem, he established the Committee on Public Information, a propaganda arm of the United States goverment, the charge of which was to produce a floot of leaflets, pamplets, lectures, and movies designed to promote a hatred of all things German and a suspicion of anyone who might be "disloyal." To address the second problem, he led Congress to enact the Espionage Act of 1917 and the Sedition Act of 1918, which effectively made it a crime for any person to criticize the war, the draft, the president, the government, the flag, the military, or the Constitution of the United States.

Some 2,000 dissenters were prosecuted under these provisions. They ranged from such obscure dissidents as Mollie Steimer, a 20-year-old Russian-Jewish emigre who threw leaflets in Yiddish from a rooftop on the lower East Side of New York, to such prominent figures as Eugene Debs, the national leaders of the Socialist Party, who had received one million votes for President in 1912 (6% of the total), who gave a speech in Ohio criticizing Wilson for the draft and for his suppression of free expression. Moreover, unlike the Sedition Act of 1798, where the maximum jail term was 6 months, judges enforcing the World War I legislation routinely sentenced people to prison terms of 10-20 years in jail, and many of these people (like Mollie Steimer and Emma Goldman) were deported for their dissent.

And what, you ask, of the Supreme Court of the United States? In a series of decisions in 1919 and 1920, the Court upheld the convictions of these defendants. In effect, the Court ruled that, in time of war, government could punish such criticism of its policies and programs because such dissent could persuade people not to support the war, and that could in turn lead them to do things like refusing induction if they were drafted or being insubordinate if they were in the army. To prevent such harms, the government could constitutionally make essentially any criticism of the war or the draft unlawful.

Things today don't look quite so bad, do they?

I'll get back to the history tomorrow (Saturday). For now, though, I want to tell you about my experience tonight as a guest on the Bill O'Reilly show. I received a call this afternoon (Friday) from the producer inviting me to debate O'Reilly on the question: “Is dissent disloyal?” After the producer and I discussed this issue, O’Reilly (according to the producer) decided to redefine the question: “Can an American want the United States to lose the war in Iraq and still be patriotic?”

Of course, this is a loaded question. It not-so-subtly implies that those who oppose the war want the United States to lose and, even worse, want American soldiers to die. One of Joseph McCarthy’s favorite tactics was to imply that anyone who believed in the social or economic principles of communism also supported the violent overthrow of the government. The tactic of guilt-by-inference is all-too-familiar in American history. (I'll return to McCarthyism in my next entry.)

In any event, in our “debate” O’Reilly insisted on his “narrow” framing of the question and, when I called him on the issue, denied that he intended to imply anything about those who merely oppose the war. I accepted his framing of the question (it is, after all, his show) and argued that a patriotic citizen could in principle want the nation to lose a war if the war is unjust and if losing meant that fewer American soldiers would die for no good reason. O'Reilly maintained that losing a war necessarily means that more American soldiers will die than continuing the war and that no one could therefore patriotically wants the nation to lose. O’Reilly tossed out such ugly phrases as “despicable,” “traitor,” and “disloyal” to describe those who would disagree. The purpose, of course, was to excite his audience.

After the show, I received dozens of emails, most of which were along the following lines:

“You ought to be arrested, tried, convicted of wartime treason. And I don't have to tell you the penalty for that.”

“I hope they are checking you out for being a traitor!!!”

“You are not only despicable, but should go ahead and move out of the USA.”

“I must imagine, Mr. Stone, that you will look over your shoulder a little bit, because maybe some soldier in a foxhole somewhere might be a tad angered with you and your lunacy. There may be a few G.I.s in Chicago even that would like to ‘speak’ with you.”

“There is the tendency for citizens to take the law into their own hands in these cases. Decent, ordinary people, not of the left, are angry enough at the far left to be willing to go along with things you would consider unconscionable.”

“You're a despicable Piece of feces, A Gutless Traitor. and I strongly suggest that you get your Terrorist Sympathizing Worthless ass out of this country while you can still walk and talk.”

And so on. What do you make of all this in light of our on-going conversation?

Thanks for the amazingly thoughtful and interesting comments on the O'Reilly show. I want to answer one questions about that because several people raised it: Why would any sensible person agree to be a guest on that show? Truth be told, I've always in the past declined to be on the Factor and other shows like it. I agreed this time because the issue "Is dissent disloyal?" is important, I've thought a lot about it, and I thought I might be able to contribute something useful. And I would have, had he not changed the issue! But, since the main thrust of my guest stint on this blog is learning lessons from past mistakes, I won't do it again! (The reason, by the way, is not because it's unpleasant, but because no one should allow himself to be used by a demagogue.)

Speaking of which, let's return to our history. We left off with the Japanese internment. As several comments noted, the Supreme Court in 1944 upheld the internment in the case of Korematsu v. United States. In effect, the Court held that, in wartime, we all have to make sacrifices, and it couldn't say that the decision to internment these people was not a rational military decision at the time it was made. Korematsu has gone down as one of the most profoundly embarrassing decisions in the history of the Supreme Court, and the nation has in many ways confessed the unconstitutionality of the internment in the sixty years since the decision. (As an interesting aside, by the way, I sumbitted a friend of the Court brief on behalf of Fred Korematsu --he is still alive and flourishing -- in the Guanatamo Bay, Hamdi, and Padilla cases in the Supreme Court last spring.)

At the end of World War II, Americans were optimistic. We had the strongest military in the world, we had just won a "great" war and we had clearly been on the side of the angels. The world was at peace. Within a short time, however, everything changed. Although the Soviet Union had been our ally during the war, relations collapsed beween the U.S. and the Soviet Union as the need for that alliance disappeared. Within a stunningly short period of time, the American economy took a nosedive, there were revelations of Soviet espionage, the Soviet Union exploded its first atomic bomb, China fell to the Communists, Americans began to build bomb shelters as they prepared by nuclear bombs to rain down upon our cities, and the Korean War burst upon the scene.

Who was to blame? How did the Soviets get the bomb? Why had China fallen to the Communists? A group of anti-New Deal Republicans and conservative Southern Democrats had the answer -- it was American Communists who had sold us out and were working to further the Soviet cause. Men like Richard Nixon in California and Joseph McCarthy in Wisconsin began to play the Red Card in order to get elected, and they did. In the 1946 elections, the Republicans, who now portrayed the choice as one between Communism and Republicanism, picked up 54 seats in the House. After being out of power for 16 long years, the Republicans had found a strategy that could propel them back into power.

Democrats, who were overwhelmed by the growing anti-Communist hysteria, jumped on the bandwagon, afraid to resist. Within a few short years the United States had a new federal loyalty program for over four million government employees, the House Un-American Activities Committee investigated thousands of individuals to determine if they were secret Communists, state and federal governments adopted their own loyalty programs, investigations, blacklists, and anti-Communist laws. Tens of thousands of people were threatened, intimidated, fired, humiliated, and even prosecuted.

Who were these people? Were they spies and sabotuers? No doubt, there were Soviet agents in the United States. But they were almost never the target of these actions. They were too well-hidden for that. Rather, these actions were cynical efforts to make political hay by taking advantage of, and exacerbating, the fear that was already upon the land. So, who were these people?

After the Depression, many Americans began to search for answers to what had happened to the nation. Many toyed with communism. At this time, the Communist Part of the United States was a lawful political party that ran candidates for public office throughout the nation. It stood for such causes as women's rights, the rights of labor, and public housing; it opposed the rise of fascism in Europe and racism at home. As many as 250,000 Americans joined the CPUSA in this period. Moreover, many millions more participated in CPUSA events or joined other organization that shared some of the goals and programs of the CPUSA. During World War II, we fought side-by-side with the Soviet Union, and FDR encouraged Americans to see the Soviets as our allies and friends.

After the war, though, all this fell apart. And suddenly the most dangerous question in America was: "Are you now or have you ever been a member of the Communist Party or a member of any organization that is or was affiliated with the Commnist Party or have you ever attended an event sponored by the Communist Party, or signed a Communist Party petition, or attended a Communist Party rally, or read a Communist book?" An affirmative answer to any of these questions would immediately cast doubt on the patriotism and loyalty of the individual. After all, how do we know you're not still a Commie who is secretly working to subvert the government of the United States.

This was the heart of McCarthyism.

Thanks, again, for all the terrific comments on the O'Reilly show. I've learned a lot from them. I may write an op-ed about the experience. But for now, a few words about Vietnam.

By the time we got to 1968, it was no longer possible to imagine a criminal prosecution of Gene McCarthy for opposing the war. Constitutional law and American culture had progressed to the point that it would have been unthinkable for the Johnson or Nixon administration to have treated antiwar leaders the way we once treated people like Matthew Lyon, Clement Vallandigham and Eugene Debs. But this doesn't mean the government couldn't find other ways to attack dissent. Prosecutions for draft-card burning, flag burning, and the public use of offensive language were frequently directed against antiwar protestors, not because the "crimes" were worth punishing, but because it was a way of "getting" those who offended government officials.

More important, the government initiated an aggressive series of undercover programs -- COINTELPRO ("counterintelligence programs) designed to "expose, disrupt, and neutralize" the antiwar movement. FBI agents and confidential informants infiltrated antiwar organizations at every level to gather the names of those who opposed the nation's policy. When all was said and done, the government had compiled dossiers on half-a-million Americans. But the goal was not just to create files. It was to act against those who had the temerity to challenge the government.

The Nixon administration launched IRS audits of those who contributed to antiwar organizations, the FBI sent letters to the landlords of antiwar activists informing them that their tenant was a "Communist," it sent anonymous letters to colleges and universities accusing antiwar activists of drug violations, it encouraged local police agencies to arrest war opponents for traffic and other offenses, and so on. The FBI also sent anonymous letters to members of antiwar organizations accusing other members of embezzling the organization's fund, sleeping with the partners of other members, and even being FBI agents. The goal was to confuse, demoralize, distract, and discredit those who opposed the war, without doing anything that could be seen. None of this was known to the public until 1972.

Finally, a word about the Supreme Court. As we saw, in World War I, the Court upheld the convictions of antiwar protestors under the Espionage and Sedition Act. During World War II, the Court upheld the Japanese internment in Korematsu v. United States. During the Cold War, the Court in Dennis v. United States, decided in 1951, upheld the convictions of the leaders of the Communist Party of the United States on a charge that they had "conspired to advocate" the violent overthrow of government. As Justice Douglas put the point at the time, the Court had decided to "run with the wolves."

This is not a very happy record. Indeed, the conventional wisdom is that the Supreme Court will never resist the executive branch in wartime. This is overstated. During World War II, the Court held unconstitutional the efforts of the Roosevelt administration to deport American fascists; during the second half of the Cold War the Court took a strong stand against McCarthyism; during the Vietnam War, the Court rejected the Nixon administration's effort to enjoin the publication of the Pentagon Papers and rejected its claim that it had a constitutional power to engage in national security wiretaps without a warrant. Most recently, the Court rejected the extreme claims of the Bush administration with respect to the rights of the Guantanamo Bay detainees and the rights of American citizens held as "enemy combatants" by the United States military. We should not expect too little of the Supreme Court.

Ultimately, though, the protection of civil liberties depends on an informed, determined, and courageous public. As Louis Brandeis once observed, "courage is the secret of liberty." May you all have the courage of your convictions.

As Larry said when he introduced me, this is my virgin blog. It was great fun for me, and I hope he'll invite me back again sometime. I wish you all a happy and healthy New Year.

Geof Stone

A little-known piece of intellectual property, the certification mark, provides a viable mechanism for employers to commit not to discriminate on the basis of sexual orientation. With just a few clicks of the mouse, at www.fairemploymentmark.org any employer in the country can license the "Fair Employment Mark." It is an innocuous symbol, an "FE" inside a circle:
There are lots of parallels to the Creative Commons. Both are reinventions of traditional intellectual property licenses to make the world a better place.

Employers that are committed to the idea of employment equality for gay and lesbian workers don't have to wait for federal or state legislation. They can privately adopt the legislation themselves.

Let me take a stab at mapping out what Ian and I are going to try to accomplish over the next week. As Larry mentioned, we've just published Straightforward - which makes the argument that mobilizing heterosexual support is crucial to making progress on securing equal rights for gay, lesbian, and bisexual citizens. The book is packed with advice about what people can do - on personal and public levels.

But what we really want to stress here over the next week are a series of informational innovations that can promote equality in the military, in the boy scouts (and other discriminatory organizations), in marriage, and in the workplace. The Fair Employment mark fits right in with the theme of informational incrementalism. By certifying one piece of information - that a business does not discriminate - we might be able to induce a substantial number of employers to privately opt into ENDA, a proposed federal statute that Congress has been unwilling to enact.

The Fair Employment licenses and the Creative Comment licenses face similar kinds of resistence. We often hear people say that no employer in its right mind would volunteer for legal liability. But this sounds a lot like people who say that noone in their right mind would ever throw away potential copyright revenues.

But it turns out that there are lots of parallel reasons why adopting these licenses make plenty of sense.

I really enjoyed reading the comments on my post from yesterday, and the many responses those comments engendered. Several people have already said much of what I would say to explain our references to privilege and the role it plays in mobilizing heterosexual allies.
One point I should be up front about: Straightforward is unabashedly written for an audience that is already on board with the idea of equality for gay, lesbian, and bisexual people. The book does not attempt to marshal arguments against discrimination on the basis of sexual orientation. We're assuming that our readers already agree with us about that and now seek ways to put their beliefs into action. Readers who seek reasoned argument on this first point might find the following books of interest: Gaylaw by William Eskridge, The Gay Rights Question in Contemporary American Law by Andrew Koppelman, or Virtually Normal by Andrew Sullivan. But even if you're not a gay rights supporter, our hope is that you'll find some of the ideas we highlight this week in the blog to be thought provoking at the least.
I understand the resistance to a concept like "heterosexual privilege." It can be difficult, even a bit threatening, to face the ways an unequal system gives us advantages that are denied to others. And this is true whether the advantage is based on sex, race, sexual orientation, or where our parents went to college (if they went to college). It just seems to be a fact of life that it's a lot easier to see inequality when you're on the disadvantaged side of the transaction than when you end up on top. So as a white woman, I don't really see the way race affects my life, but I'm quite aware of gender (e.g., taking greater precautions when I walk to my car in a dark parking lot, or making a point at a meeting that goes unacknowledged until a male colleague repeats it). In our discussion of privilege, we're challenging people of good faith to raise their awareness of the rights and abilities they have and take for granted as heterosexuals, and to see how these are sometimes denied to LGBT people. Our hope is that readers will stick with us through that challenging process and read on.
Jennifer Gerarda Brown

Lots of the comments to Jennifer's posts worried that managing information meant (a) lying or (b) burdening individuals' rights of association.

But here's an informational proposal for dealing with the Boy Scouts' discrimination that promotes both honesty and informed association.

1. We'll send a free book to the first person who gets a business with at least 10 employees to license the fair employment mark.

2. We'll send a free book to the person who gets the largest number of employees covered by the license in the next month.

3. We'll send a free book to anyone who gets a business with more than 100 employees to license the mark.

In his 1995 Chicago Law Review article, The Regulation of Social Meaning, Larry Lessig discussed some of the rhetorical devices that can change a society's shared understanding of the meaning conveyed by a given word or action. One of these, Lessig explained, was "ambiguation," which gives "a particular act, the meaning of which is to be regulated, a second meaning as well, one that acts to undermine the negative effects of the first." In Straightforward: How to Mobilize Heterosexual Support for Gay Rights, we argue that when heterosexuals tolerate ambiguity about their own sexual orientation, they use ambiguation to promote equality for LGBT people.

Name a type of intellectual property that the owner can't practice?

Here's a proposal for making progress toward equality in the military that is again an example of both ambiguation and informational incrementalism. It comes from Chapter 6 of Straightforward.

Ian and I support the repeal of "Don't Ask, Don't Tell." But is there anything that can be done as a precursor to changing this law?

Imagine that every soldier upon entering the military was asked a simple question.

Would you prefer to serve in a command without any gay personnel?

Soldiers would know that if they answer "No" they would be assigned to an "inclusive" command, and that if they answer "Yes" they would be assigned to an "exclusive" command.

A little over one year ago, the Massachusetts Supreme Judicial court made history with its 2004 decision in Goodridge, generating a new option for gay couples: marriage. We all know the controversy (and state constitutional amendments) these changes have wrought. Much of the focus has been on same-sex couples and their choices: will they travel to marry? Will they seek to transport their marriages across state lines and impose them on unwilling home states?

Less noted has been the new and difficult choice presented to heterosexual couples: Now that it is possible to marry in a jurisdiction that does not discriminate on the basis of sexual orientation, is it moral for heterosexuals to marry in discriminating states?

4 p.m. EST update on June 7, 2005: I'm told the pledge form is working again. My apologies for the inconvenience.

Despite the Goodridge victory in Massachusetts, the battle for same-sex marriage has only begun. Many states have passed constitutional bans on gay marriage. Opponents of equal marriage rights even seek to amend the U.S. Constitution.
The Vacation Pledge for Equal Marriage Rights encourages states to take the landmark step to democratically legalize same-sex marriage.
Why is legislative action so important and how can individuals help to promote it?

Imagine that one day you hear your child at play say to another "The way you throw is so gay." It seems "gay" has become a catch-all insult. How do you respond?

You could just let it pass. After all, home and family should provide a refuge from the clamor of the outside world. Gay rights are fine, you might think, but social change is something that happens out there, in society, not within our walls. Then again, maybe social change must begin at home. Many heterosexual people --even those who avoid political activity -- have become allies in the struggle for civil rights simply by the way they talk to their children. Want to join them? If so, read on for ten things you might say if you want to raise a child who can love, accept, and -- as fate might have it --even be a happy person who is gay.

The Lessig blog community is pretty amazing. Self-regulating, constructive, challenging.

Looking back I hope you can see how we paid off on our promise of informational incrementalism

We've suggested that discrimination in the military might be ameliorated by asking a simple question.

We've suggested that discrimination by the boy scouts might be ameliorated by mandating a private conversation.

We've suggested that marriage discrimination might be ameliorated by collecting vacation pledges.

We've suggested that employment discrimination might be ameliorated by certifications of legal promises not to discriminate.

We've suggested that discrimination in a variety of contexts might be ameliorated by leaving your sexual preference ambiguous (and we've provided concrete suggestions when to and when not to ambiguate).

This is from Cass Sunstein; I'm most grateful to Larry for inviting me to post on his blog for a bit. His kind invitation is a result of a naive and ignorant inquiry I sent him in the recent past, about information aggregation and its possible limits.

Background: A few years ago, a book of mine, Republic.com, emphasized the risks associated with echo chambers and self-insulation. I'm doing a new book, still inchoate, that continues to explore those risks, but that also stresses the excitingly general possibility that the Internet can allow widely dispersed "bits" of human information to be properly aggregated -- as, for example, through open source software, wikis, prediction markets, and even blogging.

All this is pretty abstract, so let me try to focus it. One of the greatest arguments of the twentieth century is Hayek's about the price system. In particular, Hayek claimed that any "price" is capturing the information and tastes of many people, in a way that will outperform the judgments of even the best experts. Hence prices do a lot better than any central planners. Here's a puzzle: How close is the analogy between the price system on the one hand and wikis, open source software, and even the blogosphere on the other? Where does the analogy break down? When, in particular, will wikis and the blogosphere fail as mechanisms for aggregating dispersed information? I'll venture some thoughts before long, but for the moment I'd just like to pose the question. I know that there's a lot of information out there about all this; any help would be appreciated.

(originally posted 7/16/05)

Here at the University of Chicago, we have something called the Chicago Judges Project, by which we tabulate and analyze thousands of votes of judges on federal courts of appeals. One of our key findings thus far is this: In many controversial areas (eg, affirmative action, campaign finance, sex discrimination, disability discrimination, environmental regulation, and more), Republican appointees show especially conservative voting patterns when they're sitting on 3-judge panels that consist only of Republican appointees. So too for Democratic appointees: They're far more liberal, in their voting patterns, when sitting with two fellow Democratic appointees, than when sitting on a panel with at least one Republican appointee. In other words, Republican appointees look more conservative when they sit only with fellow Republican appointees, and Democratic appointees look more liberal when they sit only with fellow Democratic appointees.

This is real-world evidence, we think, of group polarization: the process by which like-minded people, engaged in deliberation with one another, typically end up thinking a more extreme version of what they thought before they started to talk. (So, for example, French people who distrust the US distrust the US even more after talking with one another.) Group polarization reflects a form of information aggregation, or at least opinion aggregation, that sometimes leads in unfortunate directions. It's a big contrast to the price system, Wikipedia, and open source software.

Here's a related phenomenon: hidden profiles. In a deliberating group, shared information (information held by many or most) usually has a much bigger effect than unshared information (information held by a few or just one). The result is that groups have "hidden profiles," in the form of information that doesn't get out, or that has less impact than it deserves. Some big mistakes by private and public organizations (including faculties!) are a result of hidden profiles.

Here again, the price system, Wikipedia, and open source software do a lot better. (Of course there are important differences among the three, as the terrific comments so far suggest, and on which more soon.) All this raises many puzzles. Here's one: Are there ways to incorporate what we've been learning, from those three, so as to make group deliberation go better?

(originally posted 7/17/05)

As recently reported, Republican-appointed court of appeals judges get significantly more conservative, and Democratic-appointed court of appeals judges get significantly more liberal, when they are sitting with judges appointed by a president of the same political party. But there are two areas where this does NOT happen -- where Republican appointees differ from Democratic appointees, but where judges' voting patterns are unaffected by the composition of the panel. Any guesses?

Affirmative action? No. Environmental protection? No. Gay rights? No. Campaign finance or commercial advertising or obscenity? No. Race and sex discrimination? No. The two areas are: Abortion and capital punishment. In those areas, Republican appointees differ a lot from Democratic appointees, but the rest of the panel doesn't much matter.

Hayek's big claim about the price system was that it aggregates widely dispersed information and tastes. For this reason, he said that it was a "marvel." We've been discussing other ways of aggregating information, and it might be useful to start with Wikipedia, if only because Jimbo Wales refers to Hayek in his comments.

Wikipedia does aggregate dispersed information -- amazingly so. In a general way, it's definitely a Hayekian process. But there are at least two differences between Wikipedia and the price system. First, Wikipedia doesn't rest on economic incentives. People aren't participating because they're getting a commodity or money. There are no trades. Second, Wikipedia generally works by a "last in time" rule. The last editor. and hence a single person, can do a lot. But in the price system, the last purchaser usually can't have a huge effect. (Even if you buy 10,000 copies of each of Larry's books, you won't affect the price.) The upshot is that Wikipedia is different from the price system; it aggregates dispersed information in a distinctive and less reliable way.

Two qualifications. 1) Wikipedia nonetheless works, at least for the most part. 2) The price system doesn't always work, in the sense that bad information, sometimes spreading like wildfire, can produce inflated and deflated prices. (So Hayek was too optimistic, as behavioral economists have shown.)

What is this discussion missing?

In case anyone hasn't heard by now: The President plans to announce his nominee to the Supreme Court tonight.

An initial thanks for the many excellent comments and emails, which I'm trying to absorb. We've been discussing several methods for aggregating views: markets a la Hayek, group deliberation, and wikis (with a brief mention of open source software). One emphasis has been on problems with group deliberation, because like-minded people usually end up thinking a more extreme version of what they thought before.

In his fun and illuminating book, The Wisdom of Crowds, James Surowiecki emphasizes another method of aggregating opinions: ask a lot of people and take the average answer. In many cases, this method seems to work magically well. If you put a bunch of jelly beans in a jar, and ask 200 people how many beans are in the jar, the average answer is likely to be eerily good. Often the average answer of a large group is right on the mark.

Surowiecki doesn't explain why this happens, but the answer lies in the Condorcet Jury Theorem. If you have a group of people, and if each person is more than 50% likely to be right, the likelihood that the average answer will be right approaches 100% as the size of the group increases. (The math here is so simple that even we lawyers can almost understand it. For nonbinary choices with plurality voting, the math isn't so simple, and this lawyer can't even almost understand it, but there's a result that explains why Condorcet's basic insight applies there too.) Condorcet's result has implications for many practices; it hasn't been adequately exploited by people in business, law, and politics.

Here's a problem, though. If group members are less than 50% likely to be right, the likelihood that the average will be right approaches ZERO as the size of the group increases. (I asked members of the faculty at the University of Chicago Law School to estimate the weight of the horse who won the Kentucky Derby, the number of lines in Antigone, and the number of Supreme Court invalidations of state and federal law. The group average did really well with the first question, pretty badly with the second, and horrendously with the third!) Condorcet was well aware of this point, and hence he emphasized that we can't rely on the wisdom of group averages when most group members are likely to be biased or wrong.

Are group averages likely to be worse than what emerges from group deliberation? The answer is mixed. Sometimes deliberation does help to correct errors (especially when people are considering a "eureka" problem, where the answer is clearly right once identified). But sometimes deliberating groups do little better, and sometimes even worse, than predeliberation averages.

Are markets likely to do better than group averages? The simplest answer is yes, because participants have strong incentives to be right, and won't participate unless they think they have something to gain.

In an extremely short time, everyone seems to have concluded that Judge Edith Brown Clement will be nominated to the Supreme Court. This is clearly an informational cascade, in which almost everyone is responding to the statements of others, who are responding in turn to the statements of others, etc. (Compare the frenzy over the supposedly definite resignation of Chief Justice Rehnquist -- also an informational cascade, including many people in high positions in the media and government.) A tentative hunch, though, is that everyone is right on this one.

If the President does choose Judge Clement, the most obvious point is that he's chosen someone without much of a record. Other candidates include, for example, Michael McConnell, Michael Luttig, Frank Easterbrook, Mary Ann Glendon, and Edith Jones, all of whose views are much easier to find. The choice of someone without much of a paper trail -- if that's what we're going to see -- would be extremely interesting.

Odd: Some people have objected to my little post about Judge Clement, but apparently its substance was right. People were indeed participating in an informational cascade. Unfortunately, I ended up joining that cascade (tentatively). The confident view that the President had chosen Judge Clement, like the confident view that the Chief Justice was about to retire, was clearly a process in which many people were confidently relying on unreliable people, to the point where the number of (confident) people was misleadingly high. That's a (bad) cascade. With respect to the confirmation hearings, I predict we'll see at least one other bad cascade in the next two months. Let's watch for it.

Prediction markets, springing up at a rapid rate, provide another way of aggregating private information. Far more Hayekian than simply polling people, these markets have had some terrific success in predicting the outcomes of presidential elections (see the Iowa Electronic Markets) and also in predicting the Oscars and general box office results (see the Hollywood Stock Exchange). For Hayek's reasons, it's easy to see why prediction markets might work well. They aggregate private judgments, and dispersed bits of information, in a way that is backed by economic incentives. They have big advantages over the Condorcet method (poll and average) and what we might call the Habermasian method (deliberate and exchange reasons).

Here's the but: The prediction markets apparently did very badly with the Supreme Court nomination. Roberts was way behind for a long time on tradesports.com, and during the Clement cascade, Clement started to dominate everyone else. (Also Rehnquist was strongly predicted to resign; investors got that one wrong too.) Can we develop a general account of when prediction markets will work well, and when they won't? (And if so, should we eventually test that account in a prediction market?)

In his treatment of democracy, Jurgen Habermas emphasizes the importance and internal morality of deliberation. He thinks that under ideal conditions, "the forceless force of the better argument" will prevail. His account of deliberative democracy lies at the heart of his treatment of constitutional theory. Of course democracy can be seen as a mechanism for aggregating diverse views about both facts and values; and Habermas offers a distinctive account of democracy.

But here's a serious problem. Even under ideal conditions, the better argument may not prevail. Careful experiments have shown that groups often amplify, and do not merely propagate, individual errors. Group polarization, as discussed previously, brings about extremism, even if extremism is unjustified. Information held by a few people, or just by one, often plays little or no role in a group's ultimate decision. Informational cascades can lead deliberation in unfortunate directions. And because people care about their reputations, they may silence themselves even if they know something that is both important and true.

True, Habermas' conditions include a principle of equality and a ban on strategic behavior. But even if these conditions are fulfilled, every one of these problems may infect deliberation.

Hayek, of course, stressed the qualities of the price system, which in his view serves as an excellent method of aggregating dispersed information. If we underline Hayek's emphasis on economic incentives, we have the core of a challenge to Habermas: In deliberation, those incentives might well be absent, and hence people sometimes fail to say what they know.

We've also seen some reasons why the price system might fall victim to the same problems that beset deliberation. (Cf. the Clement cascade, affecting prediction markets.) And it wouldn't be too hard to sketch a Habermasian critique of Hayek. But at least it can be said that group deliberation often goes badly wrong, and for identifiable reasons, even under ideal conditions.

Here's a passage from the first entry on Judge Richard Posner's blog (which he runs with Gary Becker): "Blogging is . . . a fresh and striking exemplification of Friedrich Hayek's thesis that knowledge is widely distributed among people and that the challenge to society is to create mechanisms for pooling that knowledge. The powerful mechanism that was the focus of Hayek's work, as of economists generally, is the price system (the market). The newest mechanism is the 'blogosphere.' There are 4 million blogs. The internet enables the instantaneous pooling (and hence correction, refinement, and amplification) of the ideas and opinions, facts and images, reportage and scholarship, generated by bloggers."

I think that Posner is wrong to see the blogosphere as a Hayekian mechanism akin to the price system. The blogosphere does not produce prices. It doesn't even produce a giant wiki, aggregating dispersed information. Instead it offers an amazingly diverse range of claims, perspectives, rants, insights, lies, facts, non-facts, sense, and nonsense. In his recent book, Blog, Hugh Hewitt celebrates the power of blogs to hold powerful actors, including the mass media, to account. He's right to celebrate that power. And of course it's true that the blogosphere makes it more likely that dispersed knowledge will get out. But the analogy to the price system is badly strained.

My little book, Republic.com, was written before blogs had anything like the prominence they now have. But it would be easy to apply the argument there to the blogosphere -- to suggest that too much of the time, like-minded people are speaking (or at least listening) mostly to one another, ensuring that they end up thinking a more extreme version of what they thought before they started to talk. I believe that this view would be much too pessimistic (see the diverse comments on this blog, for example, or at The Volokh Conspiracy), but the question is really an empirical one on which we don't yet have a lot of data.

The blogosphere is exposing people to lots of new topics, perspectives, and information. But Posner's invocation of Hayek is a big stretch.

An empirical note on group polarization and outrage: A few years ago I was involved in a series of experiments (with Daniel Kahneman and David Schkade), trying to figure out why juries (and others) get outraged, and why they end up imposing high or low punitive damage awards.

Testing about 1000 jury-eligible people, we found that on a bounded scale (1-6 or 1-8, where 1 means not at all outrageous, or no punishment, and 6 or 8 means extremely outrageous, or severe punishment), Americans agree on the appropriate level of outrage and punishment. At least in personal injuries cases, a "5" is thought, by most people, to be a "5." Whites agree with African-Americans, old people with young people, poor with rich, well-educated with not well-educated.

The dollar metric produces a lot more variety. People don't agree on whether a "5" should be punished with a $1,000,000 award, or a %5,000,000 award, or a $50,000 award. (The study can be found in the Yale Law Journal circa 1998 and also in Cass R. Sunstein et al., Punitive Damages: How Juries Decide, circa 2002.)

But this study didn't involve deliberating juries. With deliberation, we found some surprises. (a) If the median juror started low on the bounded scale, at say 2, the jury ended up at 1 -- a leniency shift. (b) If the median juror started high on the bounded scale, say at 6, the jury ended up at 7 -- a severity shift. (c) The jury's dollar awards were much higher than the median juror's dollar awards -- a BIG severity shift for dollars. In 27% of cases, the jury's award was as high as, or even higher than, that of the highest individual juror's awards before jurors started to talk! (This study can be found in the Columbia Law Review circa 2000 and also in Punitive Damages: How Juries Decide.)

A general lesson is this: If people are outraged, and are surrounded by other people who are outraged too, they end up getting more outraged still. There's a severity shift, often a big one. I speculate that the point bears on political polarization in general -- and that it has implications for the blogosphere too.

On information aggregation, I haven't yet said anything about open source software (though some comments refer to it). But to an outsider, OSS does exceptionally well in incorporating the ideas of numerous people. It's analogous to the most optimistic understanding of Wikipedia (yes?). Here are the ridiculously ignorant outsiders' queries, with apologies for the ignorance: Does OSS do as well as it seems in aggregating dispersed information (and dispersed creativity)? If so, why? If not, why not? It's hard to have an adequate understanding of how information aggregation can go well, or badly, without having some answers. (I've read and learned a ton from Eric Raymond, Larry L., and several others, but the questions are not entirely answered.)

First things first: A grateful thanks for the incredibly helpful comments on my ignorant queries about OSS. (More comments on those queries are more than welcome.) The comments prompt the following thought. For OSS, there's a lot of dispersed knowledge and also creativity, and that's a big reason for the success. Something similar is true of Wikipedia (though as some people have suggested, the aggregation process is less reliable there). With ordinary product markets, there's also a lot of dispersed knowledge, both about product performance and about individual tastes. If a watch doesn't keep time very well, the market will respond, at least in the aggregate. If most people like the looks of a new car, the market will respond too.

Here we have a clue about why prediction markets sometimes fail, as in the cases of the Rehnquist resignation and the Roberts nomination. There just isn't a lot of dispersed information out there about what the Chief Justice is likely to do or about the President's particular choice. It follows that we shouldn't think (as many do) that prediction markets will be able to foresee terrorist attacks. Investors, taken as a whole, probably lack the information that would make for judgments that improve on the conventional wisdom. If this is right, then prediction markets are unlikely to do well in foreseeing a range of international events.

I have a feeling that this is just a rough cut at the question -- and some of the comments to an earlier post might do better -- but maybe we're making some progress.

There's another form of information aggregation that we haven't discussed: traditionalism. Conservatives who like traditions often build on the work of Edmund Burke, who emphasized that each of us has a small stock of wisdom, and that traditions embody the wisdom of the many. In this way, there's a link between Burke on the one hand and Condorcet on the other -- and a less direct link between Burke and Hayek. Here's a passage from Burke's essay on the French Revolution:

"The science of government being therefore so practical in itself, and intended for such practical purposes, a matter which requires experience, and even more experience than any person can gain in his whole life, however sagacious and observing he may be, it is with infinite caution than any man ought to venture upon pulling down an edifice which has answered in any tolerable degree, for ages the common purposes of society, or on building it up again, without having models and patterns of approved utility before his eyes. . . . We are afraid to put men to live and trade each on his own private stock of reason; because we suspect that this stock in each man is small, and that the individuals would do better to avail themselves of the general bank and capital of nations, and of ages. Many of our men of speculation, instead of exploding general prejudices, employ their sagacity to discover the latent wisdom which prevails in them."

Burke's claims have a lot of power; the problem is that some traditions may be a result of a cascade or group polarization (or worse).

In the meantime I'm wondering whether I'll have the courage to say something about the Bob Dylan concert I recently attended.

Here's my little Bob Dylan story: I took my 15 year old daughter to a Dylan concert a short while ago, and it was wonderful throughout, but the best part was the encore, when he sang Like A Rolling Stone. In the original version, it's an angry, mean, sneering, contemptuous, and hateful song (great too, of course). Dylan himself described the song with the words "hate" and "revenge." Thus the chorus:

How does it feel
To be on your own
With no direction home
Like a complete unknown
Like a rolling stone?

In the concert the other night, the song had no hate, and there was no sense of revenge. As it was performed, it was happy, joyful, exuberant, inclusive -- the chorus above all. The audience got it, almost immediately, and so the song turned out to be a celebration -- more or less, a celebration of freedom and human equality. In short, the performance turned the song inside out.

Thanks much to Larry for inviting me to post, and thanks much to you all for the terrific comments and the helpful and generous emails. I've learned a lot.

Hey folks, this is Nelson Pavlosky, co-founder and official figurehead/scapegoat of FreeCulture.org. I'd like to thank Larry for inviting myself and my colleagues to post on his blog; it's an honor to share a stage with amazing people like Cass Sunstein and Jimbo Wales!

Everyone at FreeCulture.org (FC.o) wanted to be a guest blogger for Larry, of course. While we managed to select five of our best bloggers to represent the organization, this is still the largest number of people who have blogged for Lessig at once. Therefore, we've decided to stick to several common themes, in order to provide some continuity.

As I explained in a recent interview, FreeCulture.org was created to fill several gaps in the free culture movement, and we are unique in three ways:
(1) We are a student/youth organization, in a field where the youth have been conspicuous by their absence.
(2) We have a strong local, physical presence, while remaining distributed over a large geographical area. We have local chapters popping up at campuses across the United States, and soon around the world.
(3) We are a big tent organization, uniting many demographics and interest groups into a coherent movement.

These are all aspects in which the free culture movement has been deficient in the past, and I would like to take this week to explore how we can address these shortcomings in the future. How can we get the youth involved? How can we take free culture off the internet and into the streets? How can we take free culture mainstream, and make the movement relevant to people who may not be computer geeks or copyright nerds? Together, I trust that we can find some answers to these questions.

Hey, I'm Sid Srivastava, a rising senior at Columbia University, currently in the process of setting up a FreeCulture.org chapter at my school. I look forward to good discussion about the free culture movement in campus settings and other educational environments.

One of the challenges of spreading free culture, at least among college students, is convincing them they can still participate in the movement even if they aren't artists, hackers, or copyright nerds. I've talked to a number of students who seem interested in the ideals of free culture but, for whatever reason, aren't compelled enough to get involved directly.

So how do you encourage participation without appearing too forceful? One way of addressing this issue is to incorporate free culture into some of the existing extracurricular activities and volunteer efforts on campus -- essentially raising awareness by appealing to individual interests. At my school (and across most college campuses) there is an active interest in volunteerism and a general willingness to help others, both of which could be harnessed for free culture-related activities.

For example, a group that gives health presentations could distribute its packets and presentation materials under Creative Commons licenses, providing health educators elsewhere with new content and ideas. Or, perhaps, students interested in helping the blind and disabled could make recordings of Project Gutenberg texts and release those recordings, gratis, into the community. With a little bit of creativity and ingenuity, a college activity can easily include at least some element of free culture.

Of course, it's also important for the people involved in these types of projects to realize why the free culture tie-in is relevant. In the case of the first example, open access to curricula will likely encourage the formation of other health education programs, a necessity in places like New York City, where there are only 196 health educators for 1.1 million students. And with the public domain texts provided by Project Gutenberg, there are no sticky legal ramifications or copyright issues that could get in the way of mass-producing spoken-text CDs for the people who could use them the most. The free culture movement may have been born out of copyright considerations, but its implications extend well into the domain of the socially conscious.

Given that this meshing of worlds offers so much potential, what are some other projects and ideas that connect free culture with student interests? Besides social activism, what areas involving students could benefit from free culture ideals?

A few months ago, we were considering organizing candlelight vigils on the night before the Grokster oral arguments at the Supreme Court, "vigils for innovation." We decided against it, however, because many of our members felt that it would be too melodramatic. Usually candlelight vigils are held when people die, or on the eve of a war when many people are expected to die, and it's unlikely that anyone will die as a direct result of the Grokster decision, although technological innovation may suffer.

This leads to an interesting question: when we speak of taking the free culture movement off the internet and into the streets, how can we avoid looking silly? There are certainly aspects of free culture where lives are at stake: for instance, millions of people suffer and die in the third world because we're too stupid to use generic drugs to help them, instead of sending inadequate quantities of expensive licensed drugs. But what do we do when lives do not hang in the balance? Will people write us off as nutjobs for protesting in favor of iPods? Would they be right to do so? It seems harder to go over the edge when doing online activism, especially since internet communities can be threatened or destroyed by copyright and free speech issues, so it makes sense to carry on activism in those threatened communities. But in the physical world, our physical bodies are generally not at stake. Only when our copyright laws go completely over the edge and people get thrown in jail do protests seem justified. But do we want to wait until things get that bad? Isn't some pre-emptive protesting in order?

How can we show that these issues are important to us, and take action in "meatspace," without people thinking that we are overreacting?

Howdy there: I'm Gavin Baker, a rising sophomore at the University of Florida and co-founder of the Free Culture group there. I hope this week will give Larry's readers a chance to learn more about us, and prompt some valuable discussion.

I'm writing from an Internet café in Montréal, Québec, where I'm travelling and taking French at l'Université du Québec à Montréal. Besides the observations that naturally arise from contact with a foreign country and culture, I've also had the chance to meet some of Canada's leaders in the free culture movement, about which I've written previously on the Free Culture blog ("Dispatch from the True North, Strong and Free", "Vive la Culture Libre").

FreeCulture.org calls itself "an international student movement," but the claim is a bit tenuous: All our campus groups are based in the U.S., the organization is registered with a U.S. address, and most of our volunteers are in the U.S. This is not to minimize the role people outside the U.S. have played in building FC.o, nor our friends overseas, some of whom have said they'd like to plant the group in their countries -- but we're heavily American, and rather U.S.-centric.

FC.o has a long way to go in terms of the resources we can offer new start-ups, and even further when there's a national, cultural, or language barrier to overcome. Canada, though, makes an appealing prospect for the second national Free Culture group, due to the long-standing ties between the two countries. When I return to the States, I'll be taking some time to reach out to students in Canada interested in our work.

The question remains, however: What do we do when we get there? For instance, how should the presence of international groups affect our decision-making process? Should Canadians have a "vote," so to speak, when determining American policy, and vice-versa? Can we divorce national and international affairs, and leave each country to pursue their own interests, while keeping a united front on international policies? Put simply, to what degree should the fates of groups in different countries be tied?

More generally, what does it mean to be "international" in the free culture arena?

What are the differences between the legal and cultural climate in the U.S. and other parts of the world? If individual issues translate differently across borders, how can we phrase an underlying philosophy that makes sense? Where do we look to find students and volunteers who are interested and knowledgeable about the issues? What can we do to lend assistance where it's needed?

I believe that international cooperation is neccesary to address some of the problems in copyright, in particular: I'm no expert, but I get the impression that many of its uglier facets are set in stone via international treaties (e.g. WIPO) or come as pre-requisites for foreign aid. But much of free culture, per se, is distinctly national, regional, or local -- so a "flexible federalism" with a coherent but open-ended philsophy is neccesary. Or am I wrong?

What do we need to know to operate across borders and in the international sphere? What structures do we need to do so? What differences should we expect? And how do we plant new local presences in unfamiliar soil?

One of the criticisms of the free culture movement in general has been that there are far too many academics and geeks talking about the potential perils of overreaching control over information, and not nearly enough artists. If the artists really believed that this is a threat to culture, the skeptics say, they would act out.

While I do definitely agree that our organization and the movement as a whole need to engage those who are creating art, music, and other creative works, there are a lot of young people out there who are doing exactly the type of work that embodies an open culture. Take Cory Arcangel, who melds art and technology in his Super Mario clouds hack, or Matt Boch, a video artist who combined films of his childhood with his favorite video game to create an exploratory work. Artists like these are reflecting upon works of the past and using new technologies to build upon them.

So even if there are all these young people doing interesting things, how do we get them to care about free culture? Some artists may prefer to embed a political message in their work instead of participating in outright activism. At the same time, I believe that there is a new generation of creators and artists that do indeed care about these issues. As an organization and a movement, we need to make an effort to reach out to these people, to hear their stories, to exhibit their work, and to bring them in.

As a rising 2L at Harvard Law School, I've taken an interest in the intersection between law, technology, and culture. Along the same lines, Fred Benenson and I will be giving a presentation for Freeculture.org at this year's Defcon in Las Vegas explaining why techies should care about the issues surrounding free culture. Much like we need to attract the artists, we also need to make the case to the geeks that they should care about and take action on these cultural issues. More to follow from Defcon...

I am Andy Scudder, a rising sophomore at the Unversity of Evansville, where I have been working to organize a FreeCulture.org chapter.

One of my friends at school got a shiny, brand-new Nikon D70 as a graduation gift and was, obviously, excited about the creative possibilities that it would provide. She already enjoyed browsing my photos on Flickr, so it was no surprise to me that she soon had an account of her own and started posting a few shots from her new camera.

What I wasn't prepared for was the question she asked me a few days later.

"Can I make it so that people can't print my pictures unless they have my permission?"

I tried to be helpful and tell her that she could keep people from seeing the original-sized images (and therefore only have access to images that wouldn't be a suitable print resolution), but she persisted. To her, this was a legitimate question. Since she has no way of knowing who would view her pictures online and what they do with them, she felt that it would be in her best interest to "protect" her copyright by limiting what people could do with it. As she explained it, "I want people to look at my stuff. But I also want to know who has it. It is part of being an artist; you have to know who has your stuff."

But to me, it was a dangerous question. If an artist wants to prevent someone from printing his or her work from their computer, then what other controls would we have to open our hardware, software, and very lives to if such technology existed and was widespread? This is all very reminiscent of the problems with Adobe's e-book reader and its "permissions" system. The ability of software to arbitrarily determine what rights we should and should not have based on a few bits flipped in a file on the whim of the author or publisher reminds us that, as Lessig wrote:

On the Internet, however, there is no check on silly rules, because on the Internet, increasingly, rules are enforced not by a human but by a machine: Increasingly, the rules of copyright law, as interpreted by the copyright owner, get built into the technology that delivers copyrighted content. And the problem with code regulations is that, unlike law, code has no shame.

My concern from this encounter is not that my friend lost interest in Flickr, but that as an art student fresh out of college, she felt that control of what other people's computers could and could not print was an essential feature of copyright. This is a dangerous idea for technology and the freedoms that it promotes, and if most artists hold the same concerns that my friend expressed, then DRM technologies would not only be common but the expected norm by artists.

How can we change this? It seems inevitable that if if we continue to educate our students about copyright with programs designed by the MPAA which do not reconcile for the changes to the creative landscape that digital technology and the Internet have enabled, then we will quickly lose our digital freedoms. Instead, we need to help artists understand the benefits of the digital world and why locking down their works in this landscape would not only hurt the patrons of their works, but the very creative freedoms that they enjoy.

You could say that I grew up with free culture, or that free culture grew up along with me. Free culture as a coherent movement is young, although you could say that its roots go back to the beginning of print culture, since before we had bloggers we had independent pamphleteers like Thomas Paine. It could go back to the beginning of culture itself, since before we had DJs we had the remixing and appropriation inherent in oral cultures of the past and present. Still, only recently have people been connecting the dots, with the help of the democratizing power of digital technology and the internet. The free culture movement is young (like me), and perhaps that's why I feel that young people like me should have a special affinity for it.

I love public libraries. As a kid, I spent most of my lazy Saturday afternoons inside one of the various branches of our library system, delighted at the idea that, wherever I looked, there would be stories, magazines, or books on virtually any subject to capture my attention. The feel of the library was no less captivating. An ethos of learning and relaxation definitely hung in the air, bringing together people of all ages -- from pre-schoolers to senior citizens -- into the midst of a Renaissance-like mesh of scientific thinking and artistic expression.

At any given moment at a library, there are probably kids oohing and aahing over gross bugs, budding young authors writing the next chapters in their stories, and students collaborating on their research assignments. Quite simply, libraries represent a bastion of culture and knowledge, a source of creative inspiration (for me, and almost undoubtedly, for many others).

The free culture movement fosters a similar sense of learning and sharing and creating, which is probably why I was drawn to it in the first place. On a very fundamental level, the collective body of works created by scientists, artists, and thinkers (who want to share their ideas) deserves a place for public consumption, and the online community seems to be a natural extension of the borrowing-and-creating concept epitomized (in my view) by public libraries.

When I entered college, I was somewhat surprised, and disappointed, to discover that many of the institution's libraries were closed to the general public (for security reasons or otherwise), and that a significant percentage of classroom materials were available only to enrolled students. Granted, students may be paying for the education, but knowledge is, well, knowledge and deserves to be free (an oversimplification, perhaps, but my views nonetheless). Therefore, I was pleased to learn about MIT's OpenCourseWare, a "free and open educational resource for faculty, students, and self-learners around the world", or as I like to think about it, an effort combining the openness of a public library with the academic intensity of a university.

Naturally, I started wondering about ways in which students could convince their own universities to embrace initiatives like OpenCourseWare, or at the very least, make small changes that could increase the openness and accessibility of knowledge created by professors and information kept in the libraries. What sort of hurdles need to be overcome for this to happen? Is talking to professors and administrators enough? As a student, what can you do to make classroom content more readily available?

For me, this issue is important for the same reasons I feel thrilled to step into a library and read, learn, and explore to my heart's content. Initiatives that contribute to a truly global repository -- or, more fittingly, library -- of ideas almost always bring about about public good.

If you'll excuse the blatant self-promotion, we'd like to let you know that you can support FreeCulture.org by buying one of our snazzy new t-shirts for only $20 shipped in the US and Canada, or $27 internationally. The front prominently features our logo and name across the chest, while the design on the back reminds us that, as Isaac Newton said, "If I have seen farther, it is by standing on the shoulders of giants."

Stop by our "Low-tech" shopping page with your credit card ready to get yours today!

Elizabeth may get a chance to sneak in one last post from Defcon -- if she doesn't get hacked -- but I'll go ahead and wind things down.

Thanks to Larry for having us, and thanks to you readers for coming to hear a bit about us. Your feedback is well appreciated.

Keep in touch: subscribe to our announcements mailing list and swing by our blog from time to time. Feel free to join the discussion as well. Snag one of our T-shirts, and give a listen to Creative Common's birthday gift to us.

We're young and busy: we need all the guidance and help we can get. Please help us decide our priorities, form policies and strategies, do outreach, maintain our Web site and communication channels... basically, there's a lot to do: will you help? Remember Lessig's speech at OSCON 2002: "What have you done about it?" If you think there's something at stake with culture, technology, and media -- if you're looking for a way to get involved -- we have nails that need hammering.

If you can help with the Web site, with research and writing, with creating graphics and other media, or with any of a hundred other tasks, drop us a line at freedom@freeculture.org and let us know.

If you want to start a Free Culture group in your own corner of the world, e-mail us at newgroup@freeculture.org and let us know how we can help.

We hope you've gotten a glimpse of what we're about and how we roll over at FC.o. Thanks for lending us an ear. See you around!

As I work through the list of ten things that will be free, the order that I go in has no special meaning. Even so, it should not be surprising that the first thing I'll discuss is the encyclopedia, since I'm best known as "the Wikipedia guy".

"Imagine a world in which every single person is given free access to the sum of all human knowledge. That's what we're doing." This is the Wikipedia mission statement.

The goal of Wikipedia (and the core goal of the Wikimedia Foundation) is to create and provide a freely licensed and high quality encyclopedia to every single person on the planet in his or her own language.

What does this mean, operationally? How can we define success?

"Freely licensed" is easy: free means that people can copy our work, redistribute it, modify it, and redistribute modified versions, commercially or non-commercially.

"High quality" means Britannica or better quality. Contrary to what some might suppose, Wikipedia is not intentionally or primarily an anarchy, despite our radical production methods. Wikipedia is a community, and a community, which is at the core, committed to _getting it right_. While many criticisms of Wikipedia's current quality may be valid, others are clearly absurd ("public toilet" or "anti-elitist" in particular are not serious objections).

"Every single person on the planet" means exactly that -- and so implies that we are involved in something that reaches beyond just wealthy western nations with broadband Internet access, but rather an effort that reaches languages used primarily by people who have no decent access to knowledge at all currently.

So, how are we doing? What are the odds of this goal being accomplished in the next 20 years?

First, it can be argued that although much work remains to be done in many areas, if you speak English, German, French, or Japanese, and have broadband Internet access, you have your encyclopedia. Each of those 4 languages has more than 100,000 articles and provides a reasonably comprehensive resource. Several other languages will pass the 100,000 threshold soon enough, and in 5 years time, all of these and many more will be larger than 250,000 articles.

Second, clearly there is a lot of work to be done in finding ways to actually distribute the work we have done already into areas where people can use it. Many people would be able to make positive use of English, French, or Spanish Wikipedia (for example) if only they had access to it.

Third, while it is important to provide our work in important global or "colonial" languages, we also think it is extremely important to provide our work in languages that people speak natively, at home. (Swahili, Hindi, etc.)

I will define a reasonable degree of success as follows, while recognizing that it does leave out a handful of people around the world who only speak rare languages: this problem will be solved when Wikipedia versions with at least 250,000 articles exists in every language which has at least 1,000,000 speakers and significant efforts exist for even very small languages. There are many local languages which are spoken by people who also speak a more common international language -- both facts are relevant.

I predict this will be completed in 15 years. With a 250,000-article cutoff, English and German are both past the threshold. Japanese and French will be there in a year. Several other languages will be there in two years.

The encyclopedia will be free.

The second thing that will be free is a complete curriculum (in all languages) from Kindergarten through the University level. There are several projects underway to make this a reality, including our own Wikibooks project, but of course this is a much bigger job than the encyclopedia, and it will take much longer.

In the long run, it will be very difficult for proprietary textbook publishers to compete with freely licensed alternatives. An open project with dozens of professors adapting and refining a textbook on a particular subject will be a very difficult thing for a proprietary publisher to compete with. The point is: there are a huge number of people who are qualified to write these books, and the tools are being created to leave them to do that.

I just wanted to add one little note to today's post, based on an excellent philosophical question Diana Hsieh asked yesterday about my views on free knowledge. While I do, in fact, think that it is wonderful that each of the ten things I will list will be free, the point of naming the list "will be free" rather than "should be free" or "must be free" is that I am making concrete predictions rather than listing a pie in the sky list of things I wish to see.

If there are things that I wish were free, but which I don't see any way to make free, I won't list them.

Now, for that concrete prediction: a complete curriculum in English and a number of major languages will exist by 2040, and translation to minor languages will likely follow soon after.

Unlike the encyclopedia prediction, which I was able to make by doing conservative extrapolations from the proven growth of Wikipedia, I make this prediction completely by the "seat of my pants."

Hi. Larry has graciously asked me to guest post for him for the next week. We actually didn't talk on the phone. We did what I most often do with Larry which was e-mail. Given how long I have known him by now, it is surprising how infrequently I actually talk with a real person rather than just communicate with him on-line. I frankly don't know how he answers so much mail. I am well known to my friends and colleagues for just letting messages sit in my box for weeks unanswered. Is this a yes or no? That's a quickie. Or does it require more thought, more substance, more planning, more scheduling, more feeling, a phone call, etc. So Larry asked a quick question. I gave a quick answer. And here goes.

There is my life these days, a panoply of choices that feel luxurious. Plus lots of time with my kids, twin 6 year olds.

Often people want me to spend time to interpret my 17 years at the RIAA. Or at least the last 5 of them. For the most part, I have little interest in doing that - until the book comes out :) - so when I do engage in the discussion publicly it is with an eye only towards the future. I am still engaged in the convergence of entertainment and technology. I still think about how consumers and fans interact with their stuff and what else we want to play with more or more easily. I consult with some companies who are investing in this space or advancing their positions in the market and I regularly speak with and to groups from all walks of the media and tech areas.

And I of course still love music. Actually, I love music more than ever. Because now when I listen to it, I am not thinking about the artist's relationship with their band, the record company or the sales figures or the marketing disputes or behind the scenes gossip that everyone shared. I just listen.

So given that most of my time in Washington these days as an analyst and commentator is spent on politics and what I see as the colassal moral, legal and political failings of the Bush Administration and their allies, I am at a bit of a loss as to what to focus on this week at the Lessig Blog.

I wrote these pieces on THEHUFFINGTONPOST.COM about the Grokster decision but I didn't really engage with comments or feedback given the other things going on politically at the time. I offer them here again and welcome a few constructive suggestions from Lessig Blog readers as to what you would like to hear from me this week. They are brief and may be trite compared to the large subject matter but they reflect a general mindset that I have long held. They have since been used against my former colleagues unfairly in a Senate hearing by some in the p2p community and that was annoying. It is always easier to pick a few sentences out of context rather than consider a full view. (that is why I can't wait to see what the White House papers from John Roberts will say; and what the special prosecutor's report on the Valerie Plame leak will reveal!)

I can't respond to everything but I will try and come back regularly to engage in some of the issues that interest you. And remember what happens when even my friends expect back a really long email. Thanks for having me here.

http://www.huffingtonpost.com/theblog/archive/hilary-rosen/the-wisdom-of-the-court-_3259.html

and

http://www.huffingtonpost.com/theblog/archive/hilary-rosen/the-supreme-wisdom-of-not_3221.htm

a few thoughts vis a vis some of the comments.
I don't believe we live in a world now in which it is either the corporate investment in artistic works that then get distributed versus the individual or communal creation that has no audience. i am convinced that there are many more grays than that and there are many more opportunities than that to be seen, heard, viewed, appreciated. i read some of the stuff over the last month from "Free Culture" and was intirigued with the notion of a campaign to encourage creators to see the benefits of multidistribution venues, but i was also surprised and disappointed at the cynicism about the potential success without the corporate investment.

sorry, i just don't think that is the corporation's fault.

moreover, what exactly are we talking about anyway when it comes to works at that are so stifled? I just haven't seen an environ7ement that suffers from an excess of "ownership." i would love some specific examples in the hopes that you will open my eyes.

The comments have been reallly interesting.

I love the Warhol Campbell Soup example. I wonder if Campbell's would sue him today. doubt it. in fact that is what is always so fascinating. the amount of people who face legal consequences for things like samples or parodies is so miniscule compared to the amount of their use. Music sample lawsuits, for example are really only done by successful artists against successful artists because it just isn't worth it to pursue. Every once in awhile "artistic integrity" comes into play, but rarely.

Public Enemy was genius. Did they lose their mojo because they stopped sampling?

I'm impressed with the balance and thoughts expressed in the comments.

One thing that Larry and I have always agreed on is that the licensing systems for all copyright owners are often antiquated and unresponsive to today's needs. While most copyright owners with a significant investment in work have made great strides in addressing this issue, there are so many small owners who are either regularly unavailable or not willing to use collective licensing (when it is available) As I have learned over the years, it is particularly difficult in the academic and research settings where university or grant policies often require licenses that are impossible to get or even impossible to trace ownership. That is a very good and important set of examples.

One more bit of info before I head to the beach today - relevant to the Fox News example. I believe the following story is little known.

1988. It is 2:30 in the morning. I am sitting in the House Commerce Committee room with four or five congressional staffers and only three or four lobbyists/lawyers. The final mark-up for the DMCA is the next morning in the Full Commerce Committee. The Bill had already passed out of the Judiciary Committee but it had a sequential referral to Commerce which needed to approve it before we went to the floor for House Passage. And we were hung up. Hung up on the very issue you raised. What would happen when legitimate fair use needs arose and the required content wasn't available in upprotected formats? While we knew it wasn't a "dreamers" issue and that technology was moving rapidly enough that protected content could be a reality quite soon, it wasn't yet at the time. And several of us, including most importantly by that time, the Committee Chairman who had heretofore been opposed to the Bill, wanted to get it done.

So, I pulled out a long used legislative tactic and suggested we put a "study" in the statute. That we empower the Copyright Office to do a regular study on the impact of the law on fair use and the accessibility of works. The tech lobbyist and committee staffer suggested the C.O. was too pro-copyright owners and suggested that the Commerce Department have a role in the study as well. We got a Bill passed the next day.

So, the example you raise, is just the sort of thing that the law envisions be monitored thoughtfully. One such study has already been done and found no adverse impact to date on Fair use. They will keep going.

Most happy to be here. Mostly, but not entirely, I'll talk this week about Who Controls the Internet. If you've already read the book, I'd love to hear any comments or feedback. The book can be purchased here or at most online or physical bookstores.

Let me introduce the book first. The book is mostly a history of the last ten years of nation-states & the internet. It is an effort to tell the story of the struggle of governments to control the net, and to understand the role played by geography, culture, and physical force in shaping what the network is becoming.

The book chronicles a rise in the use of state power to try to control network conduct. That's bookended by the Elred v. Reno case on one side, and ends with Yahoo & Google' capitulation to Chinese demands over the last few years. Along the way, it chronicles slow changes in the architecture of the network driven by local culture and government obsessions, with chapters on Copyright, ICANN, eBay, China, Int'l Law and others.

We have worked hard to make this a story accessible to many readers. Of course many of the readers of this blog are experts in one or another of the topics in the book. But even then, what we've tried to do is putting the last 10 years together, and put them in some perspective.

Jack at I were at the Markle Foundation in New York today to speak about the book, and as is so often the case, ICANN and domain name governance came up.

Carol Cosgrove-Sacks, until recently the United Nations' Director of Trade, asked whether an Internet that increasingly reflects the will of individual nations, as our book suggests, won't inevitably need a more globally responsive domain name system. In other words, she asked whether, in the long run, ICANN just cannot survive.

Esther Dyson, who happened to be at the event, gave a most interesting response. "Domain name governance" she said (and I paraphrase) "is like the One Ring. You can't trust anyone with its power."

Today I'm scheduled to meet with Dr. Xiong Chengyu, who is one of the personal advisors to Chinese President Hu Jintao for internet & media issues. He is in town to meet with the National Committee on United States-China Relations, among other things.

Here's what I'm curious to hear about: What Dr. Xiong thinks China's internet policy is; or what function, exactly the internet does or should play in Chinese society.

In the West, the typical role of a communications infrastructure is spoken of, at an ideal, something that leads to more self-expression, happier people, and more involvement in the nation's governance. Failing that, it ought at least entertain people and make the country richer.

Observers, myself and our book included, make guesses as to what China's government sees as the function of the internet in Chinese society. Not all have been, exactly, flattering.

But I am very curious to hear what is said directly, and I'll let you know what I learn.

One theme in the book is that an evolving balkanization of the internet is often driven by consumer preference. A good example is the suprising decline in the use of the English language on the Web.

From Ch. 3

The Economist confidently stated in in 1996 that "English may now be impregnable established as the world standard language: an intrinsic part of the global communications revolution." A New York Times article written the same year, titled "World Wide Web: Three English Words," asserted that "if you want to take full advantage of the Internet there is only one real way to do it: learn English."

That turned out not to be true. English was dominant at first. But it faded fast. By the end of 2002, less than half of the web pages were still in English, and the flights from English just continued -- babelization, if not balkanization.

Today, David Sifry and Ethan Zuckerman write on "the surprising possibility that Japanese may have unseated English as the dominant language of the blogosphere." According to Sifry's fascinating survey, "

Something that may come as a surprise (at least to the English-speaking world) is that English isn't the biggest language of the blogosphere. In fact, English isn't even the primary language of one third of all posts that Technorati tracks anymore.

If you look at the survey, you'll notice other oddities too. French accounts for but 2% of technocrati blogging, for example, despite being one of the world's most widespread languages.

So much for those ten years I spent in French lessons (yet fortunate that I've had 3 months of Japanese, kamon).

My first experience using a chatroom was in 1988. Some group in Toronto, Canada, set up something called the "Free Access Network," or FAN. It wasn't really the internet: it was all dialup, with perhaps 100 phone lines or so. And it was, true to the name, free.

FAN was amazing, and still maybe the most addictive thing I've experienced in a life with a decent amount of experimentation. After school we'd run home, Lisa, Karen myself, Quaid and others (Onil was always skeptical), 15 year-olds all, and "war-dial" FAN desperately trying to get an open line. I developed a Pavlovian response to the sound of the modem's carrier - a kind of deep excitment that comes back just by thinking about it.

As an aside, I remember Cory Doctorow, the writer and Boing-Boing editor, well-known to readers here, was also on FAN. Cory and I went to primary school together, and even once colloborated on a short film, but since high school we'd drifted apart. My last memory of Cory on FAN, at the last time I would see him in a decade, was the day Robert Heinlein died, May 8, 1988. Cory, of course, wanted people to quit talking about nonsense and recognize the importance of what had happened.

But back to FAN -- what drew us in? There was, of course, flirting, which to a 15-year old has a power not dulled by the drudgery of dating. But, to me, really it was something else -- this sense of vastness of opportunity. The feeling, oddly enough, that you can get in the Grand Canyon, or walking around parts of New York City, when you think, who knows what you might find or become. Something about those simple lines of text made the imagination run free, like all the dust at Black Rock City, and I'm still not sure why.

That was how it was -- when the internet promised deliverance from the hassles of identity. And when the internet mostly was stuff that took you away from the "real world," or what sometimes was called "meatspace."

From the window.

When I was in my teens my brother David and I ran what was then called a pirate bulletin board. We had at the time three computers, an Apple IIgs, a IBM 286, and a Mac we borrowed from school, and we had very different feelings about each.

David & I were loyal to the Apple II platform. That the IIgs was, and it pains me to say this, a flawed and doomed product, made us only more loyal. The IBM was a much better machine, yet cold and generic in a way that meant we never grew attached to it. So we let the IBM ran the BBS, and kept the Apples for ourselves. We named our BBS "Fifth Business," after the novel, and David and I were the sysops.

The dot xxx debate has been back in the news recently, and what I find unendingly puzzling is the sides taken.

From first principles, you'd except groups who want it to be harder to get pornography on the internet to want a .xxx domain -- followed by a law (like this one, or stronger) ordering ISPs to block porn sites that don't move to the porn zone. That would make it relatively easier to avoid randomly running into porn on the internet.

Yet as everyone knows the positions are reversed. The United States has signaled strong opposition, as have other governments. Groups in opposition rely on arguments that defy logic - like the argument that dot-xxx would mean more porn on the internet (if there is anything slowing the market for porn, its not the unavailability of a domain name). But U.S. groups, for reasons I cannot fathom, urge that dot-xxx would "mean perhaps twice as many Internet porn sites and twice the danger to children."

So I've been in a debate with Christopher Yoo over at legal affairs on the topic of Network Neutrality --

Here's a Snippet:

A lot of the difference in Chris and my own views stems from how we think the process of innovation occurs. Chris, rather like the later Schumpeter, believes that large firms -- in this case, network operators, drive telecommunications innovation. As the later Schumpeter put it, the "large-scale establishment" is "the most powerful engine of [economic] progress and in particular of the long-run expansion of total output."

Chris thinks incumbents like AT&T will rarely or perhaps never threaten innovation. Instead he views them as the driving force of the technologies of tomorrow.

I am skeptical. I think these view of incumbent behavior has been discredited, and that in general incumbents, particularly in a monopoly position, have a strong incentive to block market entry and innovative technologies that threat their existing business model.
...

Over the next ten years or so, as others have said, a big platform war may not be as between Windows & Linux, but between computers and (deluxe) cell phones.

For Bellheads, the cell phone is in many ways a dream platform. It puts many of the sacred principles of closed infrastructures into place, including:

1. Limits on equipment attachments; (customers use approved cell phones);
2. Vertically integrated content & applications; (ringtones, etc.)
3. Pay-per-use, value added services (like "411 and more!")
4. General freedom to bill;
5. Limited customizability or programability.

So the cell phone platform, if the Bells are right about innovation, should be just killer. As a revenue source, that's true. Yet other than SMS, I guess, I just don't see alot of apps other than voice.

The question is, would it make sense for a provider to experiment with an open cell platform? To make it easy for third party developers to offer applications to cell-users, without making some kind of deal?

Do principles like Network Neutrality make any sense for wireless? Or are conditions sufficiently different?

James Love has an interesting article on the treaty on broadcasting and webcasting rights now under discussion at the WIPO, and completely ignored by nearly everyone.

Broadcasters have long wanted yet another form of intellectual property to, yes, provide more incentives to invest in the broadcasting of content. Love suggests that a collection of web firms, like yahoo, are lobbying for a web equivalent -- a webcasting right as well.

In the meantime, I'd like a property right that gives me more inventives to wake up in the morning and floss my teeth.

Jane Jacobs, the great theorist of all things urban, died recently. It had been my dream to go find her in Toronto but that will never happen. She's obviously influential to urban planners, but I've found her writing tremendously helpful for thinking also about network design.

If you aren't familiar with her work, Jacobs was an enemy of bad central planning. She believed in cities that grew up in a willy-nilly, unpredictable way, allowing new buildings to gradually replace old, or be converted to new purposes. She believed the causes of urban blight were dullness, and hated housing projects, mega-blocks and other doomed efforts to make people live just so.

What Jacobs favored is letting neighborhoods be. She thought city planners ought create small roads and small blocks that worked on a human scale, and then stand back let the inhabitants decide how best to use their neighborhoods. Here thinking wasn't quite economics or sociology, liberal or conservative, but rather a powerful attack on our constant tendancy to overestimate our own abilities to plan how people should live their lives.

The comparisons to network design should be obvious. Network designers, like say the writers of ATM, who have too specific an idea of what they want their users to do create abominable networks that imprison their users and become obsolute quickly. The more general purpose and useful the network, the more it does for society and individuals, and the better it evolves from one use to another.

Consider the comparison: a SoHo building can begin life as a factory, become an artist's loft, then a boutique, then a condo, and so on. Some of the networks and even applications have led constantly evolving lives. The internet supported usenet, gopher, veronica, the web, ICQ, IM and so on, in a steady kind of evolution that was unpredictable in advance. The WWW itself has shuffled through static sites, through "home pages" of the Geocities era, through the rise of the search engine, through the blog, and through 2.0-style sites. Someone, maybe Danah Boyd, should write "The Death and Life of Great American Applications."

Jacobs understood that the point of urban planning was not planning for a moment, but trying to cultivate healthy, evolving cities that make people happy to live in. Much of the same can be said about information architectures - the best planned networks don't overplan, but somehow manage to create a kind of life of their own.

You can learn this in The Death and Life of Great American Cities, or any of Jacobs' other books.

Well I had planned to write a few thoughts about Yochai's book, but I haven't finished it yet! Perhaps later, with Larry's good grace.

It has been a great pleasure being here this week -- the commentators on this site are really sharp and thoughtful, and it is just a nice platform for writing.

Enjoy Who Controls the Internet, if you've got a copy, and I look forward to any comments any of you may have.

The Web has changed millions of lives. Just two months from now, on September 22, we'll be celebrating the first OneWebDay. OneWebDay is one day a year when we all - everyone around the physical globe - can celebrate the Web and what it means to us as individuals, organizations, and communities. In short, it's like an Earth Day for the Internet--a day to stop and think about what the Internet means to us.

Add the OneWebDay Button to your site and get together with friends in your town to plan an outdoor celebration with an online component that people elsewhere on the Web can appreciate. Put a link on the OneWebDay wiki In New York's Bryant Park, San Francisco's Union Square, in London with the Lord Mayor, near City Hall in Austin, in downtown Chicago, in downtown Portland, Maine, all over Canada, and in Naples (Italy), and Canberra (Australia), OneWebDay will be celebrated for the first time on Sept. 22 -- and those are just the celebrations we know about.

The goal of OneWebDay is to make the Web, and our individual connection to it, visible -- so that we don't take it for granted. We make progress when we make things visible.