May 24, 2003  ·  Lessig

Mr. Richard Bennett accuses me of “latent fascism” for deleting a comment from a post. In fact, I have never deleted any comment from any post, his included. I should think, rather than calling someone a fascist, the decent thing to do when one suspects such a thing is to simply ask.

I’m happy to have you “disagree with [me] on my blog,” Mr. Bennet. And as to the claim you say you posted, viz, that I “can’t be that ignorant” about the Sony Bono Act “harmonizing” the US term with the EU.: in fact, as Professor Karjala nicely demonstrates, the Sonny Bono Act did no such thing. That’s precisely why members of the EU are now pushing to increase terms for recordings — to catch up to the longer term that US law sets.

And if you have trouble posting a comment again, let me know. I’m happy to help.

  • http://sethf.com/ Seth Finkelstein

    One of my rules of thumb for when people complain of being censored, is
    the following: If the incident can more likely be explained by a
    computer bug than human action, then the reason is probably innocent.
    This of course has to be modified by the likelihood of the bug, and the
    material in question. It’s akin to “Never attribute to malice what can
    be explained by stupidity”, but with a more specific guide (“Never
    attribute to humans what can be explained by bugs”?)

    For example, when I was recently writing about Declan McCullagh’s
    Al Gore fabrication, I saw the article archived version is now missing two parts.
    They can be found on another archived version (“Then came the kicker …”, “Huh?”). I could
    easily see someone going ballistic, claiming this was altering the
    past, down the memory hole, etc. But I think it’s purely an archiving
    glitch.

    Always ask who-benefits, and the timeframe, and the effort, and balance
    these factors.

  • http://www.bennett.com Richard Bennett

    The comment I left was visible immediately after I posted it, and not visible the next day. This is something that I’ve never seen spontaneously happen on any Movable Type blog. So yes, this could be a computer bug, and if it is it’s the first time in recorded history that this particular bug has been encountered. So the odds of my interpretation being wrong, while finite, are long. Nonetheless, I will apologize to Prof. Lessig for impugning his honor as a lawyer.

    So now the question arises as to whether the CTEA did in fact increase the actual harmony of US copyright law with that of the EU; according to the Karjala chart I judge that it did, in all important respects. EU law remains inconsistent, so it now becomes an EU obligation to make their law more consistent with itself, and by extension with the US.

    But the larger issue is whether “the rest of the world” is a copyright monolith as Lessig implies. I don’t believe it is, and further I would assert that Singapore is on the outer limits of copyright and would do well to come into closer sync with either the US or the EU, as you wish.

    And Mr. Finkelstein, Declan’s reading of Al Gore’s remarks on his “taking the initiative in creating the Internet” was just as Al Gore intended them to be taken. Gore did not play a lead, or even an important role, in creating the Internet. Those of us who did would surely have remembered if he had, and the Internet already spanned the globe before he even heard of it.

    What Al Gore did was provide support to a measure providing some funding for an “Information Infrastructure” project circa 1993, much of which went to an employer of mine, EIT. This was jerk-off money, and the projects it spawned amounted to nothing. Most people feel that Al Gore Jr. wanted to follow in his daddy’s footsteps (Al Gore Sr. passed legislation creating the Interstate Highway System), a noble enough goal, but the train had already left the station before he arrived at it.

  • Karl

    ‘Gore’s Legislation’…nevermind the other 50 senators that voted for it, not to mention the other co-sponsers.

    His comments were deliberatly misleading, but why is there all this fuss to try to save his image in this case? He’s been caught lying atleast a dozen times, but that’s probably half as often as your average politician. I don’t see what the big deal is.

    -kd

  • http://mpt.phrasewise.com/ mpt

    This is something that I’ve never seen spontaneously happen on any Movable Type blog. So yes, this could be a computer bug, and if it is it’s the first time in recorded history that this particular bug has been encountered.

    Omniscient much?

  • http://www.bennett.com Richard Bennett

    Many who remember those days agree that this gave TCP/IP the necessary push to supplant the then-dominant proprietary networking protocols, Bitnet and DECnet.

    Jacques, Open Source TCP/IP was in BSD 4.1, and the Internet went online Jan. 1, 1983, while Gore didn’t develop an interest in computer networks until 1988 or ’89. The battle for vendor- and platform-independent networking in the mid-80s pitted TCP/IP against ISO/OSI, and the technically inferior solution had already won out when Gore started watching. He may have helped out some with the widespread adoption of that inferior technology, but he didn’t “take the initiative in creating” it. I know this because I worked for a TCP/IP company – Excelan, later acquired by Novell – in 1985 and ’86, and I sat through endless battles pitting TCP/IP against ISO/OSI. There was an Open Source reference implementation of OSI at the time as well, put out by NIST.

    See: http://www.firstmonday.dk/issues/issue5_10/wiggins/#w6

    mpt, I’m willing to assume that a bug rather than a censor prevented my comment from staying around on this blog. Try and get over yourself.

  • http://www.bennett.com Richard Bennett

    Karl, the reason Al Gore has been caught lying so few times is that he makes such a hash of English syntax nobody knows what he’s saying half the time. I will stipulate that he’s probably a good kisser, or at least a persistent one.

  • Anonymous

    The comment I left was visible immediately after I posted it, and not visible the next day. This is something that I’ve never seen spontaneously happen on any Movable Type blog. So yes, this could be a computer bug, and if it is it’s the first time in recorded history that this particular bug has been encountered. So the odds of my interpretation being wrong, while finite, are long. Nonetheless, I will apologize to Prof. Lessig for impugning his honor as a lawyer.

    I’m willing to assume that a bug rather than a censor prevented my comment from staying around on this blog. Try and get over yourself.

    Maybe you should have looked for the bug instead of trusting your own experience, which is undoubtedly mindbogglingly vast, though still finite.

    Just out of curiosity, were you planning on apologising for being a public ass? It could be the smartest thing you’ve ever posted…

  • Lessig

    Mr. Bennett, thank you for the apology.

    Regarding this:

    So now the question arises as to whether the CTEA did in fact increase the actual harmony of US copyright law with that of the EU; according to the Karjala chart I judge that it did, in all important respects. EU law remains inconsistent, so it now becomes an EU obligation to make their law more consistent with itself, and by extension with the US.

    The Karjala chart shows the CTEA harmonized 3 out of 20 categories of copyrighted work. You judge that to be be harmonized “in all important respects”? It aslo shows that the CTEA increased the disharmony with respect to precisely the categories the EU is now increasing. So the CTEA created the need for the EU to increase its terms. If this is harmonization, then indeed I am, as you so kindly put it, just that “ignorant” because I don’t see it.

  • http://mpt.phrasewise.com/ mpt

    (W.r.t. getting over myself, it wasn’t me who specified such a large font for my comment. It appears to be — and this is the ironic part — a bug in Movable Type.)

  • http://www.bennett.com Richard Bennett

    If this is harmonization, then indeed I am, as you so kindly put it, just that �ignorant� because I don�t see it.

    I judge that the categories in which the US came into compliance with the EU cover more works than those in which we moved out of compliance, but I may be wrong. I wouldn’t give all of Karjala’s categories equal weight, in any case.

    If the EU now has to move a little to complete the harmonization, that’s good multilateral negotiation style. Holding Singapore up as a model of good IP policy pushed to the dark side by the US probably isn’t your best move.

  • http://www.pawlo.com/ Mikael Pawlo

    …and then, the dog ate my homework!

  • Lessig

    My only claim was that Singapore had no good reason to (1) add a DMCA that didn’t except what we call fair use, or (2) add 20 years to all copyrights regardless of whether they had any commercial value at all. This is not to “hold[] Singapore up as a model of good IP policy”: it is to criticize US IP policy, and the me-too response of too many countries around the world.

  • http://sethf.com/ Seth Finkelstein

    Regarding Declan McCullagh’s Al Gore
    fabrication, If one looks at the full context of the
    remarks it’s clear that Gore was discussing his sponsorship of funding
    initiatives in Congress. It was in response to a
    question about what he’d done, and he had every right to talk about
    that work in such a context. Said work was indeed praised, by the
    likes of V. Cerf, B. Kahn, and D. Farber

    But back to CTEA. It is clear that the reasoning behind it was “monopoly”
    not “harmony”. Why? Because in every case that “monopoly” was
    in conflict with “harmony”, the outcome was consistent with
    “monopoly”. That is, there is no category, not a single one, where in
    the interest of “harmony”, the interest of “monopoly” was made to yield.

    I believe Mr. Bennett’s argument is that if a given outcome could be
    explained both by “monopoly” OR “harmony”, it should be attributed to
    “harmony”, and not “monopoly”. But this leaves us with the problem of
    those outcomes which works against “harmony”, and hence must be
    explained-away or discounted in order to support the argument. But
    a “harmony” which cannot be distinguished from increasing “monopoly”,
    and indeed must be ignored where problematic, has no claim to being an
    alternate explanation.

  • Lessig

    nicely put.

  • http://www.museworld.com/ Curt Siffert

    This might seem like a tangent, but it bugs me that this isn’t discussed. Why is deleting a comment fascist? This weblog isn’t a government agency. Deleting a comment from some yahoo isn’t fascism or censorship. If an anti-censorship person allows themselves to become convinced that they can’t delete a comment off their own weblog, they’re just opening themselves up to manipulation by someone who wants to push the limits by posting something unproductive just so they can scream censorship and hypocrisy if it gets removed. It’s Lessig’s blog, he can delete whatever the hell he wants to protect the integrity of his points and the discussion it yields. Lessig’s comment link is an invitation, not a right.

  • http://www.bennett.com Richard Bennett

    I delete comments off my blog when I judge them spam or obscene, but not if they’re merely trollish or provocative. We all have our own standards, and we’re entitled to have our own standards. It’s no big deal unless our standards contradict our POV, as would be the case if a First Amendment activist was to delete comments simply because they argued against his analysis. But we’ve already established that didn’t happen here. Either I made a mistake – user error – or there’s a bug in the software. Right now, I’m leaning toward “bug”.

  • http://www.bennett.com Richard Bennett

    Re: monopoly vs. harmony, I’d argue there’s a third principle at work, namely “consistency”. Principles of good statutory construction dictate that regulations for similar activities should be similar, but we find that copyright law applies radically different time lines to copyrights of different categories, for no apparent reason. Shouldn’t copyright be capable of summary as the term of copyright is X years, with exceptions for fair use, and extendable for another X years on application? But we don’t have that – we have all these different terms depending on the medium, the number of holders, the nature of the holders, etc, etc, etc. It’s a real disaster simply from the standpoint of consistency and simplicity, even without the Doctrine of Laches complications and all that.

  • Lessig

    The issue here is why the US enacted CTEA — not why might they have enacted it, but why did they. Mr. Bennett claimed that I was “ignorant” because I didn’t know that the “US extended the term of copyright to harmonize with the EU.” That is an assertion about motive. Call that motive 1. The contrary motive that might explain the extension is to maximize the profit of those who were lobbying for the extension, whether or not it harmonized. Call that motive 2.

    The question Seth asks is: if Congress were so keen on motive 1, why did they extend the term for works for hire, when extending the term for works for hire only increased disharmony? And as he rightly concludes, the fact that they increased the disharmony for works made for hire (which is consistent with motive 2 and not motive 1) again makes motive 1 less likely. Thus the data support the conclusion that it is motive 2 and not motive 1 that explains the CTEA.

    The point is so obvious that it is astonishing to me that anyone would debate it. Whether you like CTEA or not, whether you like the fact that 3 more categories of copyright are harmonized or not, whether you like the idea that the public domain is tolled for 20 years or not, whether you think that 3 out of 20 is harmonization or not, there is no intellectually credible way to say that Congress was extending the terms to harmonize.

  • mark

    The way mr. Bennet puts it, with the word ‘ignorant’ followed by a (highly) debatable opinion presented as a (practically scientific) fact, I don’t find that interesting (and killing any debate in advance).

    What I do find interesting is how strongly the 70 yrs PMA that is “harmonized”, is deemed a relevant factor by the Court (and the parties for that fact, see the quotes, why did Lessig mention the agreeing with Europeans, as if the Europeans had longer copyright protection, at least on a -commercially- important aspect?).

    I mean, can it not be said that your above reaction only proves that if the Act would have had the goal of harmonization, it failed to achieve this goal. But this proof leaves still the possibility that the lead of EU’s 70 yrs PMA has paved the way for the Act and/or the Eldred decision?

  • Lessig

    Is harmonization a legitimate governmental interest? Of course it is. Is it sufficient to overcome the constitution? Of course it is not. If Europe decided copyrights should be perpetual, harmonizing on that standard would not evade the constitutional limitation that terms be “limited.”

  • http://www.bennett.com Richard Bennett

    The court ruled, quite decisively, that the CTEA is constitutional, so I don’t see much sense in beating that horse.

    Legislation is a balancing of interests and principles, and sometimes this exercise is quite complex. Attributing motives to the Congress is often a very satisfying avocation, but, like calling your opponent in debate a “fascist”, it’s ultimately not productive. Let’s stick to the effects of the legislation, and leave the motives to the shrinks.

    I believe there’s significant good in having uniform laws on patents and copyrights world-wide, even if they’re less than ideal. Is this wrong? Certainly, we’d all prefer to have ideal and uniform laws, but in the real world that never happens. So viewed against that backdrop, the US’s influence on Singapore to get with the US program on copyright can legitimately be viewed as progress, esp. in light of Singapore’s history.

    YMMV.

  • Fuzzy

    Excuse me, but just because *this* US Supreme Court ruled the CTEA is constitutional does not kill the horse. The US Supreme Court does not try to claim to be error free (thankfully) and even then just because something is “constitutional” does not mean it is right. In Brown v. Board of Education a court reversed the decision of another court in Plessy v Ferguson. And should we still be stuck with rulings like Takao Ozawa v. United States which held that Japanese could not become citizens or U.S. vs Bhagat Singh Thind where the Supreme Court rules that Asian Indians are ineligible for citizinship? No, I think not.

  • Fuzzy

    I believe there�s significant good in having uniform laws on patents and copyrights world-wide, even if they�re less than ideal.

    You keep saying that like it is a fact. First I don’t accept it as a fact and second the CTEA did not create uniform laws world-wide, so it does not even get points for this, even if your statement was true. Instead the CTEA has just left us with non-uniform, terrible (far, far, far, far from ideal) laws on the copyrights.

  • mark

    I agree with Lessig’s point that constitutional restrictions can’t be ignored only to achieve harmonization (or to increase competitive position), of course I agree I would almost say.

    But what interests me (perhaps because I’m European) is whether the majority of commercially interesting works had longer protection in EU or in VS before the CTEA (and how’s this balance after the CTEA). Maybe this would help to see who is leading this Race of developing ‘weapons’ of copyright protection (or maybe in Lessig’s view: ‘Weapons of Massive Free Culture Destruction’…).