Lessig

It was certainly one of the most interesting parts of this most recent "exchange" to be told, by a coder I respect no less, that binaries "reveal all without revealing the source code." The implication drawn from this was that having access to the source was not important. Indeed, it was a "distraction." That was a bit of a shock to the way I look at the world. I'm of course not a coder (I did that for many years in my youth, and indeed, for two years earned my keep coding , but my mind has been corrupted by east coast code so I wouldn't pretend to know anything interesting about coding anymore), but I wonder, has anyone told RMS this? I mean, why are we worrying so much about open or free code, if in fact binaries "reveal all"?

The folks at Oops helpfully note that at least "there's more material for study in a book than in a [binary only] softrware program." And that in turn may be responsible for the "quite poor" state of software development. That seems right. But is this interesting view of this coder (who I want to be quick to add has done a great deal of good advancing all things good and great) shared by others? I mean, I understand the sense of binaries "reveal all" in the sense that all functionality might be inferrable from a binary (not sure if that's true, but I'll assume it). But is the open/closed line really so unimportant?

Ernie accuses me of optimism because of a piece in the Red Herring. In that piece, I argue that obsession about antitrust issues blinds us to other (also important) network and policy issues. And one in particular was how different DRM systems affect the network differently. Some, the argument goes, better support the end-to-end architecture that the network originally valued, and it would be easier to assure that token systems did so than copy protection systems. (Copyfight as usual puts it better than I.) Does that make me an optimist? Wouldn't that be nice. But no: I am not arguing there's less reason to worry about antitrust; nor arguing that DRM is a good thing; only arguing that we need constantly to think about how different technologies affect the policy of the net. Remember Mitch's insight over a decade ago: Architecture is politics.

Ted Shelton has some very thoughtful and balanced criticisms of my criticisms of "opaque creativity." He writes that I am wrong:

that IP creation in the past was always transparent and that today we have a new problem of obscuring production or presentation. Coca-cola, for example, has never disclosed their recipe for Coke -- Would Lessig compel them to disclose this recipe? Is this the kind of transparency he is looking for?

It's a great example, but I think it cuts the other way.

This is beautiful, Doc. And key. It's not in my constitution to be optimistic, but if only msft would become as you hope. Talk about a legacy. Remember, it was Sony that defended the vcr, before they became a content company.

Ted Shelton has a careful and fair critique of my response to his original critique of my proposal for reducing state support for oblique creativity. We are completely agreed about one important point: That the ultimate question here is which system provides the best incentives to create and spread knowledge.

As I read Ted's response, the only dispute is about whether my condition upon getting copyright protection (that you escrow source code which, when the copyright expires, is free) would be too much of a penalty for software authors that they would instead choose private protection (secrecy) over public. That's a fair question to explore -- as an empirical question -- and I can agree my proposal makes no sense if we have sufficient reason to believe it would have that effect.

The part in Ted's response I don't get is this:

[a]Thus the inventor of oblique IP would be compelled to divulge the "secret sauce" of his invention and would never be accorded the same choice between some value offered by the state (a "limited time" monopoly in the case of patents) vs. the ability to do business without such a monopoly (a "trade secret" with the possibility that the secret sauce would be reverse engineered). [b] Furthermore, as software is infinitely duplicable for nominal cost, the inventor would have all value in his invention stripped from him by the State at the end of the "limited time" of protection, as the State would become the distributor of his invention. The corollary with a physical product would be for the State to give everyone a free cotton gin when Eli Whitney's patent ran out.

I don't get [a] because, again, I think I am offering exactly the same choice. If you want the "limited time" monopoly offered by the state, then you must escrow code; if you don't, then go wild with secrets and protecting against reverse engineering. The structure of the offer is no different; only the terms.

I don't get [b] because from an economic perspective, for a competitor, there's no real difference between giving the world all the information needed to build a cotton gin and giving the world all the information needed to write 123!. Whatever the cost of production (zero or lots), from a competitive perspective, everyone faces the same information cost (zero). Secrecy keeps the information costs high (only I know how to make X, you would have to pay lots to figure it out); patents (properly administered) reduces the information costs significantly, but substitutes a state backed monopoly (anyone can figure out how to make a cotton gin, but only X is allowed); after the expiration of the patent, everyone has access to the same information, and because the monopolies are removed, everyone can compete equally.

I stupidly have fueled two extremely fruitful debates--one about software copyright, and the other about Palladium and end-to-end values--stupidly because there is a third debate I need to be focused on just now. But there is a limit to the attention "limited Times" can demand. Back soon, I promise, to debates that in their civility and seriousness show the best of what this space can be.

of my Red Herring piece by a favorite boy genius.

Dave's valid call for more and different software to cycle us out of Andy Grove's "Valley of Death" reminds me of a favorite interview that helped me write my last book. Marc Andreessen described the environment in which innovation flourished in the valley -- when the platform for innovation was neutral, and innovators did not fear the power of others to crush their innovation. Power in the software market was Andreessen's concern. Power in the content market drives much of Markoff's. But the point in both cases is the same: give the past a veto over the future, and the future will be vetoed.

I don't have the full interview typed up, but here's the chapter from the book. Marc's stuff begins on page 265.

Ted Shelton continues to do web logging credit in his careful and fair reply to my reply to ... well you get the picture. And more importantly, he does this space credit for his patience in waiting for a reply. I apologize for the delay, but because his last post has helped me understand and frame this a bit better, the conversation continues.

Ted Shelton ends his reply with a nice question: why should the protection for software "be different from copyright property in the first place." That is the issue on which the only real disagreement lies (the other disagreements are illusory, caused I trust by my own lack of clarity).

Alot of us have been talking up the importance of spectrum policy, and about the extraordinary opportunity that free spectrum (or unlicensed spectrum) creates for the next great internet revolution. Sarah Lai Stirland has a great piece framing the debate. I think Michael Powell might get this. If he does the right thing, it could be the most important governmental decision affecting the internet in 40 years.

Ted's latest (and his patience with me is wearing, so perhaps sadly, his last), makes a passionate argument against my source code escrow idea, based on the nature of software and the creativity that builds it. I realize I must have somewhere inspired this debate about "nature." I renounce it. No more talk about nature, or the philosophy of creativity. My argument is simple (maybe simplistic, maybe naive) pragmatism.

Aaron's got a reformulation of my escrow-the-code argument which is cleaner, tighter, and more persuasive. We've asked to have him re-present my argument in Eldred, but apparently one must be over 15 to argue in the Supreme Court. (Oops, today's his birthday. We'll have to ask again...)

At a Tokyo conference on Intellectual Property Rights of Software and Open Source (hey, I didn't pick the title), Msft General Counsel Brad Smith makes a strong and repeated defense of "neutrality" in the "software ecosystem." I'm the other half of the presentation, but you can skip my part (especially because my hair is weird and I mumbled alot).

Declan has a nice article which cozies up a bit more to the idea of Geeks (and geeks-wanna-bes, like me) getting more involved in the political process. That's progress from where he was last summer. But I was surprised to read his criticism this morning of Amnesty International, which has criticized those who provide technology to enable Chinese censorship. Declan thinks it better for AI to "focus its otherwise good work on the real culprits: The Chinese government." Apparently, while Geeks are unlikely to persuade Washington to call off the war that is killing IT, AI is likely to persuade China to reform civil rights.

We're holding a conference on March 1 at Stanford about spectrum policy. If that sounds boring, then you really need to pay a bit more attention to the next extraordinarily important policy issue affecting innovation and growth. There is about to be a very significant shift in how spectrum is managed. One school says it should be propertized; another says it should be treated as a commons. Read: auctions vs. WiFi; or more auctions vs. mesh networks. The question for the conference is which model makes most sense. The day will end with a "moot court" which will be judged by FCC Chairman Powell, Judge Alex Kozinski, economist Harold Demsetsz, and possibly Senator Barbara Boxer. Go here to learn more.

Doc reports being Comfort[ed] by free-IP. Soon hotels will post "Free IP" on their signs, and just as "Free TV" signs seems silly to us today, an optimistic sort might imagine our kids laughing in the future, "how silly, of course IP is free." If only we could find optimism... seesupra.

The battle to build and keep broadband neutral is an important issue to me. I go a couple rounds on the FT.COM site about it here. Maybe it is just me, but these debates are never satisfying. The thrust of Tom Hazlett's final response is that cable is much better than DSL, so don't regulate cable. On cable, see the next post. But even ignoring the logic of the claim, we should not forget: However good cable is, does it begin to match the broadband options available elsewhere. Again, here in Japan: 100 mbs for $50 a month; 12 mbs for about half that. What cable company comes even close to that?

If you want to get an idea about how bad the broadband future will be, you need only read this letter from the National Cable & Telecommunications Association describing how good (from their perspective) the broadband future will be. NCTA wrote this letter to the FCC to criticize a letter filed by the Coalition of Broadband Users and Innovators. This Coalition, which includes Microsoft and Disney, told the FCC that it needed to assure that broadband remain neutral—that carriers not be permitted to discriminate in the service they offer based on the application or content the user wants.

This letter from the Coalition was great and important moment in the debate about broadband. I've been critical of Microsoft and Disney in the past, but they deserve all the credit in the world for taking up this fight. If neutrality is lost in the broadband platform, that means the end-to-end design of the internet will be lost as well. And that would profoundly weaken the potential for innovation and growth on the network.

The NTCA letter confirms the worst. After arguing at first that they are providing neutral service anyway (a claim which itself is false: have you checked your TOS re: servers?), they then go on to defend their right to discriminate however they wish. And they defend it by pointing to Microsoft: If Microsoft is allowed to cut special deals with partners, why shouldn't the cable companies?

The level of ignorance here is astounding. We are four years into this debate, and apparently the cable companies have yet to even understand the argument they are attacking. The difference between Microsoft bundling products at the edge of the network, and the cable companies bundling preferred service in the middle of the network, is the difference between an end-to-end network and the Ma Bell network the internet replaced. This letter confirms that the cable companies do not begin to understand the value of end-to-end neutrality. It confirms precisely the claim of the Coalition: that left to its own devices, the dominant broadband provider in America (slow and expensive though it may be) sees no reason in the world why it shouldn't corrupt the basic internet design.

Robert Sachs, president of the NCTA, is an extraordinarily bright man. He is also apparently a very busy man, for there is no way he could have written the letter he signed. The NCTA should spend some more money hiring press people who have taken the time to understand the arguments they want to rebut.

Meanwhile, we, broadband users of America, need to wake up to the broadband environment four years of do-nothing-ness have produced. “Open access” has been a failure in the United States (though a total success in Japan, where competition has driven prices down and service up: 100 mbs at $50 a month); the cable companies are, as we said four years ago, the single dominant provider of broadband in America. Their service is slow; it is getting more expensive; and now they claim the right to corrupt the basic design of the network they increasingly own. My last book was pessimistic: It was not pessimistic enough.

A kind-hearted email and a nice analysis of spam have given me an idea:

First the analysis: Philip Jacob has a great piece about spam and RBLs. The essay not only identifies the many problems with RBLs, but it nicely maps a mix of strategies that could be considered in their place. But, alas, missing from the list is one I've pushed: A law requiring simple labeling, and a bounty for anyone who tracks down spammers violating the law.

Then I got an email from a kind soul warning me about my work�"do you know how powerful your enemies are?" this person asked. No, I thought, I don't, but let's see. If I've got such powerful enemies, then I've got a good way to do some good.

Here goes: So (a) if a law like the one I propose is passed on a national level, and (b) it does not substantially reduce the level of spam, then (c) I will resign my job. I get to decide whether (a) is true; Declan can decide whether (b) is true. If (a) and (b) are both true, then I'll do (c) at the end of the following academic year.

So: Is there anyone else advancing a spam solution who would offer this kind of warranty?

Bill Fitler has put together an interesting page of CodeLaws, by which he means technology designed to implement some sort of policy. The list is an important step is mapping all the ways in which behavior gets regulated. He's eager (as am I) for any input to make the list more complete. His weblog is here.

Joi makes a great point about the character of different spam control methods. While in the narrow sense, this is not an end-to-end issue (as Saltzer, Clark and Reed framed it), in a general sense, spam solutions can be divided into those that respect end-to-end values, and those that don't. The label+bounty solution (which has a nice discussion on /. and which I'd lose my job over if it doesn't work), I'm happy to acknowledge, is end-to-end respectful.

As cable companies continue to increase the cost of broadband service, and as telcom monopolies are strengthened by changes in FCC policy, it is now absolutely clear what the broadband endgame will be in the US: wireless. Think of a city where every single street light is a node in a mesh (for an example, see meshnetworks), and thus where the cloud of the internet sits on the street like the fog in San Francisco. For almost nothing, cities could provide IP light, as cities provide street lights. Neutral, end-to-end, fast, and cheap. (Apologies for this uncharacteristically optimistic post. Just a preview of the moot.)

Matt wonders what one does with 100 mbs. Great question. In Korea, where, as I was told, copyright laws are "immature," they are free to stream TV to their computers. That uses chunks of bandwidth, and creates great new competition for video. (If only we (or Canada) could be "immature" again.)

But remember Mr. Gates' thought about how much memory a PC would need: 640k. Give us bandwidth, and we'll find a way to use it.

I've been hiding away in Japan working on a book that's tentatively titled "Free Culture"--"free" as in the verb. I'd be grateful for any help with two questions that are continued below.

Thanks to everyone who responded to my request yesterday. My inbox and comment box are now deluged with fantastic ideas, and I'm now way behind in responding. Please don't stop with the ideas. I'll catch up in the replies soon. But thank you. I am astonished by the generosity.

Aaron once wondered what he should do with his life. Option 4 was answer email (3069 in his inbox). This is a worthy discipline for anyone, though we need a norm of slack for email. I'd love a script that posted the number of emails in my inbox and the average time to reply just so I don't inadvertently insult someone who's used to conversing with Mitch.

More soon, but thanks again for the help. And to pass the time quickly, I recommend Cory's book.

We've opened registration on the March 1 spectrum conference.

There's a new piece by Eli Noam posted (for free for 2 weeks) at the FT about spectrum policy. This follows the brilliant and much discussed piece by David Weinberger on Salon explaining David Reed's views about "interference."

Noam has been in the middle of the debate between the spectrum-as-property types and the spectrum-as-commons types for a long time. As his piece concludes, "spectrum should be free to access but not free of charge." The reason is an assumption that is at the core of his and the spectrum-as-property school of thought: "Eventually, any resource whose utili[z]ation is of value, yet whose use is without a charge, will be over-utili[z]ed."

The more I hear these property and quasi-property types talk, the more I believe that this is the core assumption that needs to be attacked. There are two possible lines of attack, both, in my view, true, but only one which is useful.

CIO Insight posted a piece by me about spectrum yesterday, and it was quickly slashdotted. But they posted a side-bar, not the piece. The actual piece is now up. The piece they posted tries to explain how to understand a "wireless commons."

So this is the best I've seen so far: The Talbott Hotel in Chicago has free wireless in the rooms and public areas. No registration at all. The signal strength is at the maximum; the connect time was exactly 5 seconds.

Competition is amazingly great way to get great infrastructure built. Someone ought to tell the FCC.

Jon Zittrain of Harvard Law School has been doing some good work developing useful and interesting courseware, which the Berkman Center offers for free. If you're interested in helping provide feedback, check out his post to cyberprof.

Ed Felten has a wonderful piece about the idiocy in the mini-DMCA's being considered by a number of state "governments." What is so frustrating about this business is not the people (like these governments) who disagree with you. But that their disagreement reveals that they have not done anything to understand the issue. We are over 5 years into this battle, yet these laws look like they have been drafted by people who have lived on another planet these past 5 years.

After my talk at CFP on Friday, some smart soul asked me a question that I answered quite stupidly. He asked whether part of the problem we face cames from a "naive" opposition to regulation. This was an argument I had made before in Code, and I was not eager to engage it again. But the right answer is yes: there is still a need balanced and useful regulation. The one (but only) sense in which Declan is right is that none of the regulation we've seen so far is either balanced or useful.

But that does not mean that balanced and useful regulation wouldn't do some good. As I go through my morning mail (I counted today: 83% of messages received in the past 24 hours is spam), I am reminded of an especially useful set of regulations that Congress should enact immediately to save email from the sludge that buries it. I've bet my job on one solution. But whether that solution or another, this is something Congress should do soon.

I was one of the "fretters" (as Declan called us) at CFP in New York last week. By "fretters," Declan means people who "lose perspective" on issues like media concentration, and threats to privacy. "Perspective," in turn, means recognizing the "tremendous difference" between actions taken by the government and those taken by private corporations. Who exactly doesn't understand that difference isn't clear from the article; nor is it clear for how long this "tremendous" difference will remain "tremendous," as increasingly corporate databases are essentially the government's (TIA). But no matter: whatever the threat CFP-ers were worried about, there's apparently *still* nothing to worry about (as of course, Declan's had this same line in his copy-buffer since I first met him at CFP97). The free choices of the market will allow everyone to choose any problem away (when we will get around to that happy set of choices, though, is not yet clear.)

Declan did criticize me for invoking "1970s rhetoric" when talking about media concentration. I'm still not quite clear what exactly that means. I was criticizing media concentration, which on any measure, is massively greater today than in any period in our history. In 1992, 70% of prime time television was produced by independent producers; today, 75% is owned by networks. There are 91 "major" TV markets; 80% of them are owned by 6 companies. In 1947, 80% of newspapers were independent; that number is below 20% today. In the 1970s, 10% of first run films in theaters was foreign; that number today is less than .5%.

Add to this concentration (1) the expansion in copyright terms, (2) the expansion in copyright's scope, (3) the expansion in copyright's reach [ie, to anyone with a computer], and (4) the explosion of technologies protected by DMCA-like laws, and you clearly get, imho, something to be concerned about. It *might* be that all this doesn't matter, and no doubt, we should keep this in perspective, Declan. But from what perspective is this a happy story?

Anti-fretters are apparently convinced that everything's just great because now we've got "satellite TV, satellite radio, DVDs, CDs, video-on-demand, hundreds of cable channels, movie rentals and ... the Internet." But of course, no one is saying there are fewer *outlets* for media; the claim is that there are fewer "independent" outlets for media. Six companies, which if the media cap rules are relaxed, could well be three.

Should we be worried about this? As I said to Nick Gillespie (whom I had not met before and who is brilliant), my bias has always been not to be worried. I'm a fan of Judge Posner. He's done lots to slay "big media" myths. And in this contexts, as well as many, big is not necessarily bad.

But the more I hear from people who know something about what the process of creativity is actually like, the more I am concerned. Gillespie says the artists have always been whiners. Maybe. But the "innovator's dilemma" applies to culture as much as to commerce. Yet we have more reason to be worried about its application to culture than to commerce.

Maybe there's nothing to be worried about. Maybe the market will make it all turn out just fine. Maybe this really is the best of all possible worlds. Or maybe this is the one issue which my sparring partner has gotten right. As he testified when arguing against relaxing rules requiring independence in programming, he predicted "[t]hey would assert their fiscal authority in such a way that literally three people would have complete authority over what is seen in homes � a monopoly in television never before comprehended or tolerated in this country. ... No one industry, no single entity, no group of enterprises ought to be allowed, by special grants of congressional privilege, to dominate the marketplace �. The losers in that ungainly arrangement are consumers��always, every time."

Who is this defender of diversity and opponent of concentration? The amazing Mr. Jack Valenti.

JD Lasica has a nice pointer to a story about progress in the digital watermarking debate. He wonders about this progress because of work (in part by Ed Felten) suggesting "that all such encryption systems can be defeated." But there is an important distinction that this debate needs. I'm a strong supporter of flawed (in the sense of defeatable) watermarking. Here's why:

Matt's got a wonderful brace of posts (have we determined what the collective noun for web log posts is yet?) Thursday that reports a question and then a story to answer it.

Jon Udell's got a nice piece about the emergingly Semantic Blog. One part he missed was the emergence of CC licenses as part of the semantic blog space. Movabletype and Userland now both incorporate CC license options. The technique we've used with html has been questioned, but we are pushing hard to get RDF out there.

What's needed is a killer app, and here's where the powerful need to be responsive. Google in particular has not been receptive to becoming RDF-aware, making it harder to build the amazing Google hack that would enable a search such as "give me all the pictures of the Empire State Building available under a non-commercial license." Perhaps here's where competition between AllTheWeb, or Yahoo and Google may do some good.

Some say the reasons Google remains Semantic-ly-unaware are dark -- that in a world of articulate pages, it is harder to be the dominant search engine. I'm not willing to believe this yet. I suspect instead that it is up to us to spread the semantic word, and then others will find more reason to pay attention to it.

On June 2, the FCC is scheduled to release new rules governing media ownership. The expectation is that the revised rules will remove limits on media concentration. The consequence of that change will be an extraordinary increase concentration, in an already concentrated industry.

These issues are hard. Big is not necessarily bad. Change in media structure is not necessarily corruption of media content. But the more I have read about creators worried about this increase in concentration, the more I have looked at this issue.

Surprisingly or not, the issue of media concentration is not being covered adequately by the media -- that same media that will be affected by the changes in these rules. So that makes this ripe for the media in this space.

I've got a bunch of stories and statistics to report, and will. But this is something we need many many voices to report. Where else will the news not fit to print get printed -- except in weblog space?

Congresswoman Zoe Lofgren today introduced her REDUCE Spam Act. That Act is in part based upon the idea that I have bet my job on. This has led some friends to write that they hope the law is not passed -- some because they believe it won't work, some because they don't like this or any regulation. To the first group, I appreciate the concern, but remain unworried. To the second, I understand the concerns, but remain convinced.

The general idea of the statute is that spammers must label UCE, and if they don't, then the law enables a bounty system to pay people who hunt down those who fail properly to label. I've been getting lots of questions about how this would work, and as many are similar, it would obviously help to post a FAQ. It would be great to get more questions beyond the first wave, and a FAQ would certainly help.

This final draft does have a nice modification that was suggested by a particularly skeptical friend. The label requirement initially is a simple ADV: in the subject line. There are obvious problems with mandated protocols, and so the modification requires either an ADV: or "an identification that complies with the standards adopted by the Internet Engineering Task Force for identification of unsolicited commercial electronic mail messages." This is a nice modification that both creates an incentive for the development of other protocols, but vests that process within a body that so far has resisted capture. I was originally worried that any industry standards group would be open to capture. But I have lots of confidence that the IETF will be able to suss out spammers.

The key to this idea is, as Congresswoman Lofgren puts it, that the Act would enlist a bunch of 18 year olds in the battle against non-complying spammers. "Between the 18 year olds and the spamsters," as she puts it, "I'll bet on the 18 year olds."

Me too.

Dear Spammer:

I don't have much time to read emails, and I especially don't have much time to read unsolicited commercial emails. But I have decided to make an exception. If you would like to send me unsolicited commercial emails, then I agree to read them on the condition that you promise to pay me $500, and subject to the additional conditions mentioned below. You can accept this offer by sending unsolicited commercial email to me at mailto:make-my-day-q2wxe4q1@pobox.com.

In accepting this offer, you also agree (1) to be subject to the laws of California for the purpose of enforcing our contract, (2) to pay any costs, including attorney fees, incurred in enforcing our contract, (3) to pay your obligation under this agreement within 10 days of sending the email, by mailing a check to me at the address referenced in the Contact section of this site, and (4) to accept service and costs associated with any bill collector that I hire to help collect obligations owed me under this contract.

Good luck with your business.

Lawrence Solum on "Copynorms", the "informal social attitudes about the rightness or wrongness of
duplicating material that is copyrighted." Is there a convincing account of the source of these norms?

So like bored guests at a dinner party, everyone seems keen to change my subjects. (If I believed in smileys I'd insert one here, but I don't.) So ok, let's talk about what YOU want to talk about.

As you likely know, the Supreme Court of California has held that a preliminary injunction in a trade secret case does not necessarily violate the first Amendment. The decision was in the context of deCSS code that enabled the decryption of CSS protections for DVDs. The opinion is here and worth a read.

Two points, one annoying and one important.

Annoying first: Gaggles have written me asking how is it that if "code is speech" the First Amendment doesn't guarantee that code can't be regulated? This is an argument that has been around for a long time, and its staying power is something I don't quite get. Sure, code is speech. But why do you think speech can't be regulated? Mickey Mouse is speech. But just try posting copies of Mickey Mouse films without Disney's permission, and you'll see how far that gets you. The truth is, the Constitution notwithstanding ("Congress shall make no law..."), Congress (and states) make law all the time regulating speech. Thus, calling it speech is just a first step in the analysis. The real question is what burden the government must bear in justifying the regulation.

Important second: The court assumed a bunch of important facts. In particular it assumed:

"First, the court concluded that the CSS technology contained protectable trade secrets because it derived independent economic value from its secrecy and because DVD CCA made reasonable efforts to maintain its secrecy. Second, the court found that Johansen had obtained these trade secrets through reverse engineering in violation of a license agreement and therefore acquired these secrets by improper means. Third, the court found that the defendants, including Bunner, knew or should have known that Johansen acquired these trade secrets by improper means when they posted DeCSS on their Web sites. Fourth, the court held that the trade secret status of the CSS technology had not been destroyed because it had been posted on the Internet."

But the Court goes on to say (unanimously) that it was wrong for the District Court to simply assume these facts. Indeed, it was the duty of the District Court to independently determine whether each of these facts was true. If any of these facts is not true, then as a matter of trade secret law, there is no right to a preliminary injunction.

Ian Ayres and Barry Nalebuff have written a book, Why Not?, with a bunch of ideas that they want to give away, as a way of teaching innovation. Ideas like "why can't I email a list of numbers I need to call to my cell phone" are there (and here) for the taking. They've also built a website with more free ideas.

Continuing the hope of Dave that policy makers might think sanely about these issues. See the comment at O'Reilly Net.

Paul Margie has a great and interesting new piece on spectrum policy -- and not just because he's a senior staffer at the FCC. This is the great if invisible fact about bureaucracies like the FCC -- they are filled with amazing people, at least one step down from the top.

So the lesson of BBC is that if you're misleading about whether the government misled you into war, management must resign. What about the simpler case -- you're just misleading about going to war?

Meanwhile, BBC employees organize to fight the chill of government sponsored scolding. And some non-BBC Brits, shocked at the scolding, organize to ask the simpler case -- in Britain.

Which is a better term for a binary thinker:

(a) bin-head
(b) bit-head

The Anarchist in the Library (Basic Books, 2004)

Q: This is a very provocative title. Who is the anarchist and where is the library?

SIVA VAIDHYANATHAN:
The anarchist is a specter. It�s a symbol of an imagined threat. There are powerful forces trying to close up our information worlds so they can control its flows and charge admission. To accomplish their goals, they raise fears about �anarchists in libraries,� uncontrollable, dangerous forces threatening us from within. The library is a metaphor for our information ecosystems. I argue we should be as careful with our information ecosystems as we should be with our real ecosystems. Small changes can have huge effects.

A journalist friend of mine has been writing about prisons. She has discovered in the process an extraordinary wealth of amazing and reflective writing by prisoners. I'd like (and they've agreed) to turn some of this writing into a blog, since the prison won't permit them to publish the writings in the prison paper.

Is anyone game to help? I'd send you (by snail or fax) copies of the essays; you'd be a contributor to the blog by posting what was written, and adding comments of your own. I'd only need a couple volunteers to make this possible. I'm happy to host the site and pay for the MT interface (yes, I'm HAPPY to pay for MT).

Email me at this disposable email address by June 7 if you're willing to help.

UPDATE: Ok, my inbox is flooded with great volunteers. Thanks to everyone who did volunteer. More here when we get it going.

Kevin Werbach, who was at the FCC, and then worked with Esther Dyson, and will soon begin teaching at the Wharton School, has launched a group blog about unlicensed wireless issues. Check it out at http://www.wirelessunleashed.com.

Here's the hypothesis: Today's telecom and copyright laws often regulate similar subjects, but with a big difference. The telecom laws slightly favor market entrants, while the copyright laws favor the incumbent disseminators. The result is a "copyright gap" that grows larger every day.

Years ago, when I was a law clerk, I was impressed by how much Judge Posner could accomplish with one simple question. He would ask, "What exactly is the purpose of this law (or proposed rule)?" It was astonishing how often lawyers would stare or gasp, unable to answer this most basic of questions.

I think the least you can ask of government, whatever branch, is that it always have an answer to Posner's question. When acting on behalf of the public, it ought always have a clear reason for what it is doing, that it can articulate without shame, sloganeering, or reliance on non-existent evidence. Is that too much too ask?

Yet so often Government is failing this simplest of tests. Copyright, our favorite topic, is full of stuff that lacks what lawyers call a rational basis. If you really ask -- what does it accomplish to extend copyright on existing works by 20 years? How does that promote the progress of Science? There just isn't, and wasn't an answer.

Or this weekend, as the Adminstration put the nation in a state of fear with heightened terror warnings. We should expect a reason, and good reason. Fear is very expensive. But we read instead that years-old evidence justified the action? We're not in a position to know better, but why can't the Administration explain why it is doing what it does? Why can't it give reasons for its actions that don't insult our intelligence?

Or consider the Supreme Court, which in Blakely, seemed to strike the sentencing guidelines and created chaos in the district courts. Again, to what end? Can the Court even articulate what it thinks it is accomplishing?

I don't think Government by reason is too much to ask for. But it certainly isn't what we're getting.

Every so often someone defends, with a straight-face, that which we think undeniably wrong. They say, for example, that the holocaust never happened, or perhaps that slaves actually liked slavery, or that some degree of torture is fine as government policy. Orwell called this ability "Blackwhite," or "a willingness to say black is white when party discipline demands this." In its advanced form it leads to "the ability to believe that black is white, and more, to know black is white, and forget that one has ever believed the contrary."

As Mark Frauenfelder and others have documented, the Guthrie family and probably Woody himself think the JibJab parody just fine. In the words of Grandaughter Cathy Guthrie (pictured here), "this parody was made for you and me."

But here's the thing: much of the JibJab Brouhaha was actually caused by a lack of author's rights....

When disruptive new technologies have emerged that changed the way in which consumers have gotten access to news and entertainment (e.g., radio and cable television), the existing legal structures of the Copyright Act often could not accommodate the challenges posed by the new technology. In the early case of piano rolls and later with radio and cable television, for example, Congress adopted compulsory licensing legislation as a means of appropriately compensating content owners while simultaneously encouraging widespread use of the new technologies.

With P2P music file sharing, we have witnessed a range of dramatic responses from the content owning community: massive lawsuits against individuals, including innocent children and grandparents; invasive efforts to get customer information without the intervention of a judge through misuse of administrative subpoena provisions of title II of the DMCA; and now the Induce Act in the Senate.

Fred von Lohmann and his colleagues at EFF have suggested an innovative alternative to litigation and traditional compulsory licenses. Their approach, described as a "voluntary collective licensing" system, is aimed at compensating artists while ensuring that new technology will flourish. I would welcome your thoughts on whether this is the kind of approach we in Congress should implement or whether there are other alternative means of moving beyond the unproductive debates of today to a new legal regime for music file sharing.

If it is true, first, that widespread piracy at some point diminishes the incentives for industry to invest in new works;

And if it is true, second, that piracy is limited to a demographic, say, 15-25 year-olds (perhaps because people older than that are lazy or value their time more);

Won't the eventual response of industry be to simply begin investing in films like "On Golden Pond," and music like "Air Supply, Greatest Hits part 6?"

In other words, doesn't piracy carry its own punishment? (And conversely, doesn't paying brings its own rewards?) That's how the rest of the market works -- products follow willingness to pay. And if this is right, what are the arguments for government supplementing the punishment?

So how often do you actually visit sites in other countries? How about in other languages?

If you're like many users, the answer may "not that often" (apologies to the foreign readers of Lessig Blog). Its a small sign of the Balkanization of the Internet, a process that is happening faster than anyone is noticing. What we once called a global internet is becoming, for many practical purposes, a collection of nation-state networks, still linked by the internet protocol, but for many purposes, separate. Some of the evidence:

Economists who study government (public choice theorists) have since the 1970s been interested in the "Loser's Paradox." Can it help explain the content of our copyright and telecommunications laws?

Technologists are divided in some ways, but united by a common faith. Stated simply, we worship innovation. Openist, deregulationist, libertarian, or cyber-anarchist all take innovation as deliverance. Our battles are mostly internecine warfare, fights about how best to achieve that common goal.

But how often do we ask ourselves: Why? What is the �end� importance of innovation? Is it more than just liking new stuff? How, if at all, does innovation connect with, say, human happiness?

Doug Lichtman is an information law scholar at University of Chicago and one of the best of our generation (I recommend in particular his information platforms piece). He and I agree on many things, but disagree on some too. And when you boil things down, the differences come down to something simple: our views on timing.

There is lots to Reason. This book collects the best -- including one of my favorites, Copy Catfight, by the great Jesse Walker.

Here's a cool remix of the news, in a new service called Buzztracker. Using Google, the site gives a visual representation of news on the net.

So Veni Markovski, source of many many great things, especially in Bulgaria (including cc-Bulgaria), asked me to mention a film, The Optimists, which will debut in New York on October 21st. The film is about the Bulgarian conspiracy to save Jews from concentration camps. Veni says it is a fantastic movie.

(For the record: I don't do movie recommendations except if they come from Veni. So if you ever want your movie mentioned on my blog, don't ask me. Ask Veni.)

In this paper, Michael Heller introduced the concept of the "anticommons" -- a resource subject to many different "property-like" claims, thus leading to its underutilization. The context was post-Soviet Russia. That context made it sound remote. But the idea was soon domesticated in this paper by Heller and Eisenberg appearing in Science. And then the concept got its most important play in a paper by Nobel Prize winning (and conservative) economist James Buchanan and Yong Yoon, titled Symmetric Tragedies.

That's all fantastically good theory. Here, however, is the anticommons in practice. There are many more examples like this. I'll make it a practice of collecting them. Maybe enough examples will get the thick-political types to recognize (as the very much not thick Buchanan recognizes) that the issue of IP reform is not about whether you favor property or not, but whether THE PARTICULAR FORM OF PROPERTY the government has crafted operates efficiently.

(Thanks for the pointer, Tom!)

So the recent struggles about network neutrality have led me to recognize something I hadn't quite seen before. And that something in turn makes more puzzling the debates that have been raised around network neutrality.

The something to recognize is that in a fundamental sense, fair use (FU) and network neutrality (NN) are the same thing. They are both state enforced limits on the property rights of others. In both cases, the limits are slight -- the vast range of uses granted a copyright holder are only slightly restricted by FU; the vast range of uses allowed a network owner are only slightly restricted by NN. And in both cases, the line defining the limits is uncertain. But in both cases, those who support each say that the limits imposed on the property right are necessary for some important social end (admittedly, different in each case), and that the costs of enforcing those limits are outweighed by the benefits of protecting that social end.

So from this perspective, it is easy to understand those who reject FU and NN (who are they?). And it is easy to understand those who embrace FU and NN. What gets difficult is understanding those who embrace one while rejecting the other -- at least when that rejection is articulated in terms of "government regulation."

For there is a consistency problem for those who embrace FU while arguing against "government regulation to support NN." For FU and NN are both "government regulations" -- each government defined limits on government granted property rights. In both cases, a government official (a court, or the FCC) is telling a property owner "this use of your property is opposed by the state." And while there are important differences in the way FU and NN get administered, if anything, FU is more vague, more complex, more expensive, and more uncertain than the regulations being called for under NN.

So too are other arguments advanced against NN also available FU. NN opponents say the market will take care of the problem -- that people won't use networks that don't give them the freedom they want. But the same could be said about copyright -- if Madonna's too restrictive, you could try Lyle Lovett. Some say there's not a showing of market power with NN sufficient to justify state intervention. But on that standard, could there ever be a justification for FU? Who could possibly have enough culture as to have that amount of market power over culture? And finally, NN opponents say NN would sap the incentives from network owners, and they won't build fast networks. But again, the same argument is made against FU -- that giving up perfect control destroys the incentives of copyright holders. In both cases, the arguments are the same -- on the one side, the call for perfect control over a property right; on the other, the demand for some limit in the exercise of a property right.

There's also a consistency problem of course for those who embrace NN and criticize FU (me, for example). For the reasons I'm critical of FU are exactly the reasons people are fearful of NN. That recognition has helped me understand the nature of the concern about NN. But again, having lived the legal battles over fair use, and watched the regulatory battles over NN('s equivalent), I don't see how anyone can be categorical in embracing FU while rejecting NN.

No doubt, some of those who embrace FU while rejecting NN (or the other way round) do so because the value said to be protected by each is not, in their view, sufficiently strong. That difference wouldn't raise questions about consistency. It would simply reflect differences in values.

But then let's hear that debate. Let's hear people who say competition in applications and content isn't important. Or that it doesn't raise issues of free speech. Or whatever other reasons might be advanced to argue that government shouldn't intervene here. Such arguments would at least be progress in a debate that seems to me so far just stuck in a confusion.

So I'm looking for some examples of sites or companies that fit this particular way of carving up the world. This matrix builds upon stuff I've been talking about. But to be clear, let me begin by defining the categories:

RO v. RW environments

This is a distinction between the primary use intended for creative work that the site makes available. It answers the question: "What can you do with the content on this site?"

RO means the primary use intended is "read only" -- the content is offered for the purpose of consumption; there's no invitation to add content back, or to modify the content offered.

RW means the primary use intended is "read/write" -- the content is offered in a way that invites others to add or modify the content that is offered. RW sites can be more or less RW: some invite contributions to the site without permitting modification of content offered.

Commercial v. Sharing environments

This is distinction between the objectives of the site. It is a fuzzy distinction, but the core difference is this:

Commercial sites aim primarily to make money. They are usually run by commercial enterprises, and they measure their success in financial terms.

Sharing sites are not aimed primarily at making money. It's not that creators and users of these sites are communists. It's just that creators and users of these sites do things other than (try to) make money at least part of the day. Think of the Wall Street mogul who teaches Sunday School (and there are these).

Maybe the best way to feel the distinction between a sharing and commercial site is to imagine the role of money in each: There's nothing weird about the owner of a commercial site offering her employees more money in exchange for more work. There would be something very weird in our Wall Street mogul trying to opt out of Sunday School one week by offering each of the kids $50. Money is normal in one context; it is out of place in the other.

It's fairly easy to build a list of examples of each of these four categories. I've done that here.

But what I'm particularly interested in is the combination of these two distinctions -- the matrix above. I'd be grateful for more examples to fit within each of these four boxes. I've built a stub for that list here.

Now obviously, this is social space, not logical space, so the matrix does not describe everything. And indeed, the most interesting category I'm keen to explore are hybrids between commercial and sharing sites -- plainly commercial organizations that try to exploit (in the best sense of that term) a sharing economy. The key to success with the hybrid is to exploit without poisoning the sharing community. Linux is the most familiar example of this: Sharing economy motives push many, perhaps most, to contribute; but plainly commercial entities (RedHat, IBM) are trying to exploit that sharing economy.

I've got a stub to collect examples of hybrids here, with a bit more explanation about what they are.

Importantly: My aim here is descriptive, not normative. It is to see a wide range of examples to begin puzzling through what makes the most successful within each work. For these purposes, the only evil is force or fraud, and none of the four kinds I've mapped need rely upon either. So please direct the flame wars about good and bad elsewhere.