May 23, 2003  ·  Lessig

Mr. Gates has proposed his solution to spam. Unfortunately, it is yet another idea that will not work.

The problem the MSFT solution aims to solve is the problem of distinguishing good spam from bad. The proposal has a clever (though I think dangerous) safe harbor provision to “create incentives for email marketers to adopt best practices, and to certify themselves as trusted senders who can be more easily identified by consumers and filters alike.” Presumably, if we know which marketers are “trusted senders” we can accept their mail, and block all the rest — spam and non-spam alike. Thus, email would become a more effective channel for trusted marketing — but little else.

The safe harbor provision could make sense if there were a background requirement that all spam be labeled. There’s a hint of that requirement in the letter Mr. Gates wrote to the Senate Commerce Committee (“participants would be entitled to avoid the burden of additional labeling requirements (such as “ADV:” )”). But the proposal doesn’t actually endorse a labeling requirement. And without it, the proposal does nothing to distinguish real email from HGH sellers. The proposal would help distinguish HGH sellers from, say, Amazon. Wonderful, but I didn’t know that was the problem.

The proposal does say lots about making sure ISPs and state attorneys general have the power to sue — again, like most (but not all) solutions, centralizing the enforcement function. But all such solutions will fail because a centralized system for enforcing spam regulations will never be enforced. ISPs and state attorneys general have better things to do than enforce spam regulations. They always have; they always will.

This is the key point: the enforcement problem. Whatever the requirement, if it is not effectively enforced — meaning that most spammers do not fear that they will be caught and punished for failing to obey a requirement — then it will fail. And if it is effectively enforced, then it will work even if its penalties are not harsh. Solve the enforcement problem, and a slap on the wrist will work. Fail to solve the enforcement problem, and even the death penalty would be ineffective.

It’s no surprise that Congress doesn’t get this. Congress gets points for “seeming” tough. If you seem tough, it doesn’t matter if your ideas work. So puffed-up “get tough” rhetoric tied to totally ineffective legislation is the norm.

But it is a surprise that a company as skilled as MSFT would make the same Washington (DC) mistakes. Mr. Gates has done extremely well in world where mistakes hurt profits. He is doing extraordinary good in the world where generosity (indeed, astonishing generosity) corrects for policymakers’ mistakes. But as a policymaker himself, he is still MSFT v1.0.

Let’s hope he gets to MSFT v3.1 soon.

May 22, 2003  ·  Lessig

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

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.

May 22, 2003  ·  Lessig

Howard Dean says at least two important and true things here: (1) “The way to deal with a leader is to be another leader, and to be strong in your views and present the American people with a choice”; (2) “For me, when the Cumulus Corporation, which owns a lot of radio stations, kicked the Dixie Chicks off their networks � a couple hundred radio stations � I realized that media corporations have too much power.”

May 22, 2003  ·  Lessig

Timothy Phillips, one of the most active people pushing to reclaim the public domain, writes in a comment to my post yesterday,

“�Monitor the issue ?� Why doesn�t the representative introduce the bill, if it has not already been introduced ?”

Why Timothy? Because as one person who had spoken to someone on the hill wrote me, “no congressperson yet sees ANY possible benefit to them from introducing this bill, and they all see SIGNIFICANT political costs. This is like taking on the NRA, but these people have more than one movie star on their side.”

May 22, 2003  ·  Lessig

Stanford is hosting this year’s iLaw program — a program begun by the Berkman Center for Internet and Society. It is the third American edition of the course (we’ve given it twice overseas as well — once in Singapore, and this March in Brazil), and it is getting, imho, quite good. The class is always a mix of lawyers, government officials, technologists, and others, always from across the world.

If you’re interested, check it out here.

May 22, 2003  ·  Lessig

The W3C has taken an extremely important step. The step was taken in the context of patent policy. The substance of the step is important enough: W3C has taken the position that it will not recommend a standard that depends upon a patent that is not offered on a Royalty-Free basis. Some wanted a stronger position — no patents at all. But the W3C position will at least assure that Web standards will not be blocked by patents.

But the more important decision is the procedure taken in releasing this decision: W3C has released its public version of the decision with the reasoning behind the direcor’s action attached. Danny Weitzner reports this is a first. I don’t know of any example to contradict that claim. Let it be the first of many from this important organization that continues the work of the web’s founder.

May 22, 2003  ·  Lessig

Dan Gillmor has picked up the MediaCon story — thankfully. His eJournal has begun collecting stories about the obvious effect of concentrated media: that the news will begin to sing in harmony with the interests of the owners. Here’s a snippet from Salon on this. And here’s his announcement of a mediacon channel.

I don’t know who owns the SJ Merc, but whoever does, I guess Gillmor is at least some evidence against my concern that big media will compromise journalism. Some.

May 22, 2003  ·  Lessig

Mikael Pawlo, among the world’s, and certainly Sweden’s, most active lawyers monitoring of all things cyber, wrote a terrifying story about the law regulating the net last year. Seems a newspaper ran an online forum where readers could post. A reader posted speech that was deemed “hate speech.” The newspaper was held liable — not because it failed to remove the speech quickly enough. The newspaper was liable the moment the speech was posted. Thus, the message from the Swedish courts: Do not create fora where people get to speak unless an editor reads their speech first. The story is here.

And they say the Internet will check “big media” …