April 20, 2003  ·  Lessig

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:

A watermark is a tag. If it is to work, it needs to be strong enough to resist reasonable incentives to remove it. What incentives are “reasonable” depends upon what the watermarking system is for. (Think of the difference between UPCs on a box of cereal and those chunks of plastic and steel on clothes in a department store.)

The DRM reason for watermarking is to enable digital locks to control access to digital content. The incentives to pick those locks will be strong — especially if prices for content remain high.

But some watermarks enable systems other than locks, and for those, there is very little reason to remove the watermark. These watermark systems in turn can afford to be weak.

For example, William Fisher’s proposal (outlined by Derek Slater here) for compensating artists depends upon a watermarking system. But there would be very little incentive to remove the watermark from the digital objects because the object is free anyway.

Or again, we at CreativeCommons have been presented with lots of useful and clever ideas for marking digital content to enable a simple link to the CC license. As CC licenses are meant to enable the expression of freedoms, not the mechanization of control, there’s again little incentive to remove those tags.

If we had a world filled with weak watermarks (again, like UPCs on products), that would tilt evolution towards systems that depended upon expression rather than control. Some of those systems would benefit compensation regimes (Fisher’s and others); some would enable “some rights reserved” regimes, like Creative Commons. But the more such alternative regimes that we can produce — alternative to the CONTROL model of DRM — the better.

We can have compensation without DRM control. We can have a respect for rights (Creative Commons) without building “the police state into every computer,” as Intel’s Craig Barrett so nicely put it.

April 17, 2003  ·  Lessig

Today, Les Vadasz will announce his retirement from Intel, effective June 1. We owe this extraordinary man a great deal.

Vadasz was a founding member of Intel in 1968. He has been a founding member of the small but growing (and exceptionally important) group of IT executives who understand the threat to innovation that this current “war” (the copyright war) presents.

Vadasz became famous to the public when he had the temerity to standup to Senator Hollings’ abuse. But his real work has not been in the public’s eye. It has been the person to person campaign that he has been waging in the valley, waking these good folks up to policy questions that they wish would just go away.

They won’t go away. Nor do I expect that Vadasz will. Instead, his work � from helping to build a company like Intel, to helping to remind Democrats and the world of the importance of free speech and consumer rights to innovation and growth � will remain: as a challenge to us, and an example to others.

Mr. Vadasz, thank you. (Path to email link here).

April 13, 2003  ·  Lessig

Doc has a great post pushing public domain dedications of content. But on the way to his valuable recommendation, Doc writes,

“I believe what Userland and the Creative Commons people have made here is, literally, a DRM � digital rights management � system, in the best possible sense of the acronym.”

I think it is useful and important to distinguish between DRM and DRE — digital rights management vs. digital rights expression. DRE is a technology simply (1) to express rights. The “management” in DRM implies a technology — code — both (1) to express rights and (2) to enforce it.

But for all of the reasons that the DMCA debate has made clear, there are lots of problems with DRM systems precisely because code is used to enforce copyright rights. Code can never accurately map fair use, it can never reserve a right to criticize the existing expanse of control, etc.

DRE is therefore DRM minus the management. A DRE system simply enables an efficient way for people to say what freedoms they are enabling. In a world where the default is “all rights reserved,” CC DRE enables a simple way for people to say “My content is free in the following ways.”

That CC freedom is of course in addition to the freedoms guaranteed by “fair use.” But “fair use” is not, in our view, enough. The Commons needs a richer range of freedoms than the freedoms guaranteed by “fair use.” CC thus enables people voluntarily to increase the freedom around their content.

We believe saying CC-free is an important step for many reasons. But we also think it is importantly different from technologies that would make computers the enforcers of the limits on that freedom. DRE is therefore not DRM.

Finally, one technical point: Our CC licenses expressly state that you can’t use our technology with a DRM system that does not adequately protect “fair use.” As I’ve not seen a DRM system that adequately protects “fair use” yet, imho, that means you are not allowed to use a CC licenses with a DRM system yet. At least that is so if you take seriously the commitments the CC license imposes.

April 13, 2003  ·  Lessig

Doc has an interesting post about CC licenses and the public domain. As he rightly notes, we have no direct license that you can link to so as to place your material in the public domain. This is not because we wouldn’t like to offer such a license. It is instead because the law does not make such simplicity possible. While for most of our history, there were a thousand ways to move creative material into the public domain, most lawyers today are puzzled about whether there is any way to move work into the public domain.

We have tried to build a way, but it is not automatic. If you follow this link, there are a number of steps you can take to put material into the public domain. We believe that if you follow these steps, then your work is in the public domain. Again, there’s no way to be certain about this. But this is our best guess, given the murky state of the law.

Again, this can’t be automatic. But you can automatically license your content under an Attribution only license. The only requirement that an Attribution licenses imposes is that a subsequent adopters give credit. This is an important, but slight burden. And because our licenses are perpetual, this is quite close to a public domain dedication.

April 13, 2003  ·  Lessig

Dave has posted instructions for placing a Creative Commons license in the RSS feed generated from a Manila weblog.

This is great news. We have launched a campaign to build a layer of reasonable copyright law in a world increasingly defined by the extremes. CC tags — marks expressing freedom beyond fair use — is an important first step. Web logs have been the most important early adopters. With Movabletype, and now Userland, the most active and vibrant community on the web is beginning to show the rest something between the extremes.

April 12, 2003  ·  Lessig

An interesting mix of Senators has written a strongly worded letter to Chairman Powell about his apparent decision to revise media ownership rules without public hearings. This does seem a curious way to launch profound changes of media policy — in a democracy at least.

April 12, 2003  ·  Lessig

Two articles from The Hindu suggest the interesting world we’ve entered. In the first, India’s Union Minister for Civil Aviation says that the doctrine of “pre-emptive war” (relied upon by the United States to justify its war in Iraq) should be used to justify a war against Pakistan to counter its allegged support for “terrorism.” In the second article, Pakistan says that there is “ample proof that India possesses biological, chemical and other weapons of mass destruction” and of the “massacre of innocent civilians in Ahmedabad and Kashmir” and therefore is a fit case for “pre-emptive strike.”

April 8, 2003  ·  Lessig

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.

April 6, 2003  ·  Lessig

So this story continues to amaze me. Pennsylvania has a law that gives the Pennsylvania Attorney General the power to order an ISP serving Pennsylvania citizens (read: any ISP anywhere) to block a site which the Pennsylvania Attorney General says serves child porn. There is no judicial review of the order, and as no ISP is likely to resist the order, the law results in unreviewed censorship of internet content. According to this report, the AG is now refusing to even reveal the list of sites his secret orders have blocked.

There are hard cases in the law of cyberspace, no doubt. But this should be a slamdunk easy case — if anyone would have the courage to challenge it. CDT is exploring a challenge. Good for them. If the First Amendment means anything, it must mean that the government can’t order the censoring of a publication without any judicial review at all. You might want to tell the Pennsylvania AG what you think. Here’s a form.

April 6, 2003  ·  Lessig

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.