December 31, 2002  ·  Lessig

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

“The abyss.”

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

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

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

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

December 31, 2002  ·  Lessig

Two weeks ago at the Creative Commons launch, I tried to sell the virtues of building rather than suing. The reality is that we need to do both. As Stanford’s Center for Internet and Society has announced, we filed a lawsuit last week to defend the right of Emily Somma to distribute a children’s book that builds upon the story of Peter Pan.

Peter Pan was created by Scottish playwright James M. Barrie (1860-1937). The character was born in a 1902 book called The Little White Bird and then developed into the play Peter Pan, or The Boy Who Wouldn’t Grow Up, in 1904. In 1906, the section of The Little White Bird that originated Peter Pan was published separately as a book called Peter Pan in Kensington Gardens. Finally, Barrie turned his highly successful play into a book called Peter and Wendy in 1911.

All these works have entered the public domain in America. But because Barrie continued to produce works based on the Peter Pan story, the holders of those copyrights claim that there can be no derivative works using the Peter Pan character so long as those later works remain under copyright. (In England, by special law, the copyright for Barrie’s work is perpetual). Thus, the holders of Barrie’s copyright claim a perpetual right to control derivative works based on Peter Pan, even though the original work passed into the public domain.

Emily Somma, a Canadian, has written a wonderful children’s book, After the Rain, that uses some of the Peter Pan story, but for very different ends. Peter Pan, you might remember, is afraid of growing up. In Somma’s story, children rescue Peter Pan from this fear. Thus, like the best of derivative works, Somma’s story builds on the past, but does something different with it.

Yet Somma is now threatened with a legal action in the United States if she distributes her book in the United States, even though her work plainly builds on work that is in the public domain. This, we believe, is wrong. It is just one example of an important class of cases where current copyright holders demand the right to control the use of work that is in the public domain just because their work builds upon work that is now in the public domain.

Stay tuned for more news, or tune your reader to the CIS RSS feed for updates on the case. Peter Pan is already free. It’s time the law (and lawyers) to recognize it.

December 30, 2002  ·  Lessig

The Future of Ideas has been translated into Japanese. As sometimes happens, the translation improves the book. Not only is the title better (“Commons”, which the American publisher vetoed), but it also has a great and revealing introduction by the translator, Hiroo Yamagata. As always, the translator reveals as much about the work he translates as the world he translates into.

December 24, 2002  ·  Lessig

There’s a wonderfully careful analysis of various CC issues at burningbird. Thank you. One point to clarify, however. CC licenses are, at this moment, at least, permanent, in the sense that the term is as long as copyright runs (and we’ll see whether that’s permanent or not soon enough). That issue was a tough one for us (I, of course, favor “limited terms”), and we’re eager for feedback on that issue.

But just because you can’t revoke a particular license doesn’t mean you can’t revoke the offer. If, for example, you offer content under a CC license for a month, and then change your mind, you can stop offering the content under that license. Anyone who accepted your offer while it was valid, of course, has a deal. But no one after you withdraw the offer can accept anymore.

Finally, my blog is licensed in the xml. Button coming soon.

December 24, 2002  ·  Lessig

Time’s choice of three who spoke truth is a welcome bit of wonderful news in this not so great year. How strongly the world yearns for those who have the courage to say what is right´┐Żstraight, truthful talk. If only those who led understood this yearning.

December 24, 2002  ·  Lessig

I missed a string of comments about CC licenses and software. Shelley raises some great questions. Here’s the problem. We’re trying to develop tools to enable people to express their preferences as simply as possible. We can’t do much to make the underlying law simple.

I’ve tried to answer some of the questions in the extended entry. But I’m afraid Shelley will be right again: The answers will only raise more questions. There’s lots here to work out, and we can’t do all the working out.

First, here’s the mandatory disclaimer: I am a lawyer, but this is not legal advice. It is part of a conversation that a community must have.

The RSS/content puzzle is a great one. Like an envelope that says “the content included is under license X” but the content says “I’m under license Y”: How to read the two together? I agree there are potential problems, but I’m not convinced the solution is to terminate RSS license expressions. Part of the reason is that I don’t think we know where RSS will go. So let it grow, and let’s see.

But on the theory that we want to enable people to do what they want most easily, what makes most sense?

Regarding Jon Udell’s extraordinarily cool project, Matt is right. Though this is creative work, and one can license the copyright part of it using the CC license, the CC license doesn’t make the source/object distinction that other software licenses do. Again, this is a focus of the future, but we’re not there yet.

December 21, 2002  ·  Lessig

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.