April 30, 2003  ·  Lessig

Who kindly email to ask whether they can link to my content on my blog: The permissions for my site are expressed in (1) human readable form, (2) lawyer readable form, and (3) machine readable form in the Creative Commons license linked at the bottom of the page. The whole point of this is to enable people to build upon other peoples’ work without signing a contract. (Here’s a nice flash to make the point.) So please excuse me if in response to your request, all you get is a link back to this post. If you need express permission, then I’m sorry: CC-express is the best I will do, because a world that better expresses freedom is the space we are trying to build.

April 30, 2003  ·  Lessig

There’s a standard dance that the IP extremists do well: When they lose in Congress, they go overseas and negotiate a treaty that imposes on the US the same obligation they just lost in Congress; then they come back and say, “we must do this to live up to our international obligations.”

So here we go again: The US Trade Representative is negotiating trade agreements with Chile and Singapore. The agreements essentially require these two countries to adopt the DMCA, and make it a violation of “our international obligations” if we were to change the DMCA. Representatives Lofgren and Boucher — who both have bills introduced to amend the DMCA — have written a strongly worded letter to the USTR asking for clarification. For consistent with this policy making process, just what is being promised is never made clear — until it is too late. Here’s the letter.

April 30, 2003  ·  Lessig

Some of the best work cataloging the effects of increased concentration has been done by the Future of Music Coalition. In November last year, they produced a great report about radio deregulation. (The punch line: more concentration, less diversity, less opportunity for musicians).

FMC is now part of a group of artists that has sent a letter to Michael Powell about the upcoming decision to further “deregulate” media. Here’s a link. More good stuff from people who know.

April 26, 2003  ·  Lessig

One important issue that the change in market structure affects is the independence of creativity. Because of the repeal of network ownership rules, there has been a dramatic change in the ownership of pilot shows on major networks. This graph shows the change. In 1990, the overall percentage was 11.3%. In 2002, that had increased seven-fold — to 70.2%.

How might this matter? Some of the most important television has been produced by independents. “All in the Family,” for example, created by Norman Lear, was created because Lear could say no to network executives who wanted to tame his creation to fit the network image.

The future: fewer Lears likely.

Here’s the data for new series:1990 — 12.5% owned; 2002 — 77.5%

April 26, 2003  ·  Lessig

One measure of the cost of concentration is the effect that creators say it will have. Here’s an extraordinary interview by Bill Moyers with Barry Diller. Favorite line: Moyers’ asks, doesn’t the explosion in the number of channels mean we have more diversity?

Diller: “No. Because what we have is an absolute fact that five companies control 90 percent of all of it. It has been reconstituted. Instead of it being three channels that were controlled by a few people, there are now 500 controlled by a few people.”

April 26, 2003  ·  Lessig

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?

April 25, 2003  ·  Lessig

I have just finished reading the opinion by Judge Wilson dismissing MGM’s suit against Grokster and Streamcast. The opinion is testimony to great lawyering. The key to the decision is the difference between the architecture of Napster and the architecture of Morpheus. To get a judge to understand that completely takes an extraordinary skill. This was not a case I worked on at all, so I am free to say this: EFF deserves a great deal of credit in this case. As Kapor said at its founding, “Architecture is politics.” Now it is also law.

April 20, 2003  ·  Lessig

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.

April 20, 2003  ·  Lessig

A while ago I reported the wonderfully radical testimony of Jack Valenti against the removal of the FIN-SYN rules. I have not been able to find the testimony online. Here’s a large pdf of a scan of the relevant section from the GPO’s reports.

April 20, 2003  ·  Lessig

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.

In his first post, Matt usefully draws together a bunch of current perspectives on the compulsory licensing debate. In his last paragraph, he writes “I’m doubtful that compulsory licensing actually solves the right problem, but I’m curious about what problems led to compulsory licensing in the past.”

There’s been lots written about this, though none that has yet penetrated the policy debate. (I discuss this in two chapters of my book. Here’s a pdf
of the final (uncorrected) draft of those two chapters. Acrobat is on the fritz on my machine, but when I’ve fixed it, I’ll replace this with chapters directly from the book.) The Cliff Note version is that new technologies for distributing content have created the need for a compulsory license.

But then in the second post, Matt provides the best example of just why compulsory licenses have been used in the past. He tells the story of the demise of ReplayTV, which, in large part was caused by the extraordinary burden of litigation that company has had to bear. For years that company has been in litigation defending the right to deploy a digital version of the VCR. The consequence (in part) of that burden is that the company was forced into bankruptcy.

Again, many have written about the insanity of a system that forces new innovators to go to a federal district court to defend the right to innovate, and again, many have written that the real meaning of the Sony Betamax case was that we should allow innovation first (so long as there is a “potential for a substantial non-infringing use”) and let Congress deal with balances later on.

But the key insight from the Sony Betamax case that should have resolved the ReplayTV case quarters ago was that Congress has in the past used lots of tools to “rebalance” the rights of creators in light of new technologies. That should be its role in the future too — its role, not the courts. Congress can work out systems of compensation to assure artists get paid, without giving the dinosaurs of last century control over the innovation today. Or again, compensation without control.