August 11, 2003  ·  admin

I would like to thank Professor Lessig for inviting me to begin a dialogue with you.

Wherever I travel throughout America, including here, the issue of corporate media and media accountability arises in every question and answer session. The American people are deeply concerned about the erosion of democracy, notably the impairment of free speech which has occurred through the increased concentration of market power in corporations which own newspapers, radio and television stations.

I’ve spent a great deal of time studying this issue. I hold bachelor’s and master’s degrees in speech and communication from Case Western Reserve University in Cleveland, Ohio. During my academic career, I studied the Failing Newspaper Act, which provided for joint operating agreements (JOA), which presaged the death of afternoon newspapers in America. In my own lifespan, I’ve seen the city of Cleveland go from 3 daily newspapers, the Cleveland News, the Cleveland Press, and the Plain Dealer, to just one. I’ve studied the Federal Communications Act of 1934, which set specific responsibilities for broadcast license holders to serve “in the public interest, convenience, and necessity.” H.L. Mencken, the famous critic, once wrote “freedom of the press is limited to those who own one.” Indeed, the Constitution is liberally interpreted when it comes to the government having any role in directing what goes into print. And that is as it should be (that is not to abandon questions of horizontal and vertical market concentration). However, holders of broadcast licenses have specific responsibilities to the public. It is the public which owns the airwaves. The public provides a license in exchange for service. At the same time the definition of media has expanded to include interactive services, the requirements of service have been largely abandoned as media monopolies have grown more powerful. Community groups struggle for recognition, social and economic causes which run counter to vested interests are marginalized, and our politics are corrupted by having to raise huge amounts of money from one set of corporate interest to buy airtime from another set of corporate interests.

As the next President of the United States, I intend to address this issue directly. First, the Justice Department will engage in an ongoing dialogue with major media over how the public interests can be better served. Second, I will sign an executive order which will require all broadcast licensees to provide free time for all federal candidates. Third, additional funds will be appropriated for the support of public television and public radio. Fourth, community cable systems will receive guidance as to how they may more effectively enlist community participation in the airing of broadcast media programs. Fifth, a White House conference on the protection of the First Amendment and its relationship to media concentration will be formed to enlist the participation of academics, activists, and the industry, in order to facilitate a broader and more effective understanding of the central role which media plays in the life of our nation.

Your comments and suggestions are appreciated. It is through such dialogues on democracy that we can fulfill our responsibility to form a more perfect union.

Dennis J. Kucinich
Philadelphia, Pennsylvania

This entry and my personal blog are licensed under a Creative Commons License.

August 11, 2003  ·  Lessig

As announced last week, Congressman Dennis Kucinich, candidate for President, will be guest blogging this week. He’ll be posting his first post in about an hour, but in a bit of a change from the last presidential visit, he’d be eager to see questions from you that he can frame his posts around. He’d like to address at least (1) copyright policy, (2) media consolidation, (3) privacy, and (4) electronic voting, so please post questions to this entry about those issues, or any other issues you’d like to see discussed.

Thank you to the Congressman for continuting this experiment. Thanks to you for making it worthwhile for him and you.

August 10, 2003  ·  Lessig

Jonathan Percy runs a cool site called Green Plastic, which is a fan site for the band, Radiohead. The site hosts, among other things, lyrics from the band. In June, Warner/Chappell Music contacted Percy to ask him to remove the lyrics.

This is of course increasingly common. Lyrics are copyrighted content. Posting lyrics makes a “copy” of them. Therefore, copyright owners who believe more control is better banish lyric sites to darkness.

But this time, the story was a bit different. Percy complied, and took the lyrics down. Fans were upset, and complained to Warner and to the band. Warner Chappell then contacted Percy again, and gave him a free license to post the lyrics. The lyrics have now returned.

Percy thus has permission to spread culture. Good for Warner Chappell.

August 10, 2003  ·  Lessig

There’s an interesting story to be found in the thread here about a recent decision by Grinnell College to shut down a discussion space, Grinnell Plans, which was an important and vibrant community for students, staff, and alumni alike. The site has now moved to a private server, and the conversations continue.

The link above does a nice job in laying out the arguments that led to the removal, and arguments the school made for closing the community. Is Grinnell’s decision common?

August 7, 2003  ·  Lessig

So if this California recall succeeds, then more likely than not the Governor who replaces Gray Davis will have received fewer votes than Gray Davis. Davis could get, say, 49.9% of the vote, and would be “recalled.” But his replacement is chosen with a simple plurality. Thus, in a field of 200+ candidates, it is more likely than not that the replacement governor will have gotten fewer votes than the governor he replaces.

Which of course reminds one of another election — the 2000 presidential election, where again, through a special rule in the Constitution, the executive who won had fewer votes than his opponent. Though President Bush won in the Electoral College, he plainly lost the popular vote. Nonetheless, because of a constitutional provision (and an overly activist Supreme Court), the candidate with fewer votes won.

In both cases, the results are consistent with the letter of the law. But one might well ask whether they are consistent with the spirit of democracy. No doubt there is still strong support for the (imho outdated) institution of the Electoral College. So Bush’s victory (forgetting the Supreme Court’s role for a moment) is not only consistent with the letter of the law, but consistent with an institution that at least some believe makes sense.

But the same can�t be said for the California recall provision. Whether or not you believe in the power to recall, the California provision is insanely stupid. It makes no sense to decide the winner on the basis of a plurality. This is just a badly crafted constitutional provision — a kind of constitutional loophole. It’s the sort of clause which we fail people for writing in constitution-drafting classes. (No, there are not really any constitution drafting classes, but clearly there should have been in California at the beginning of the last century).

Yet it is one thing to have a bad clause in a constitution. It is quite another to rely upon it to become the Governor of a state as important as California. Whether Republican or Democrat, there is something deeply wrong about taking advantage of a constitutional mistake to become governor of one the most important states in the nation.

I can’t understand why the Democrats, or at least why the Davis supporters, don’t make this point clear. And more importantly, I can’t understand why Governor Davis doesn’t at least nominate a protest candidate — a candidate who says (1) this election is wrong, and (2) whether you like Davis or not, you should vote not to recall him on the basis of a constitutional mistake, and (3) after you vote not to recall him, you should vote for the protest candidate. That candidate would promise not to run for reelection — or for any office in California, since no one should benefit politically from a constitutional mistake — but would hold the governorship �in trust� until we have another election where the candidate with the most votes wins.

One might say, who could possibly resist such a loophole. That whether it is honorable or not, what politician would forgo the chance to become President or Governor, regardless of the means?

Yet we should remember that many believe that Nixon made essentially this choice when he refused to fight the results in Illinois and thus let Kennedy become President. In his moral universe, that’s not how an executive should become an executive.

It is a measure of this Enronera that neither our President nor over 200 candidates in this California recall election live up to the moral standards of even Richard Nixon. By whatever means, they will claim power.

August 7, 2003  ·  Lessig

There is a great deal of very exciting stuff that has already happened at Creative Commons, and that is about to happen too. We’ve got some exciting announcements coming soon, and the take-up rate on the licenses has surpassed our wildest hopes.

But there are the moments of disappointment. And this exchange with “legal” at mp3.com is one of the most disappointing.

The story begins when our assistant director, Neeru, sent an email to mp3.com to try to open up a line of communication about Creative Commons and its mission. As she wrote,

>> Hello MP3.com,
>>
>> Creative Commons provides free copyright licenses to musicians who want
>> to distribute their content online, but wish to reserve some copyright
>> protection. In fact, one you your artists, the Phoenix Trap, has
>> incorporated a Creative Commons license into their MP3.com home page.
>> We would love to help you offer Creative Commons license to your users
>> — it’s free, and a great way to make clear the rights and
>> restrictions artists would like to offer their fans.
>>
>> http://artists.mp3s.com/artists/15/the_phoenix_trap.html
>>
>> Please feel free to contact me.
>>
>> Regards,
>>
>> Neeru
>>

Harmless enough, I thought, and it was encouraging to see mp3.com artists begin to use CC licenses.

Monday, “legal” responded as follows:

>> From: legal@mp3.com
>> Date: Mon Aug 4, 2003 11:05:33 AM US/Pacific
>> To: neeru@creativecommons.org
>> Subject: RE:Creative Commons and MP3 [#1316347]
>>
>>
>> Nothing replaces the legal protections provided by registering a
>> copyright with the US Copyright Office–most certainly not your “free
>> license.”
>>
>> This email is formal notice for you to cease and desist from further
>> contacting our artists through our web site to solicit for your
>> product/services, which are not sanctioned by us.
>>
>> Legal Department
>> Music & Media
>> Vivendi Universal Net USA, Inc.
>>

I can’t describe how depressing this sort of stuff is. There are many in the content community who understood right away the benefits and virtues of Creative Commons licenses. Indeed, at our announcement in December, we had a video endorsement from not only John Perry Barlow but also Jack Valenti.

But we’ve obviously not yet made the mission clear enough — at least if this is the sort of response we get from a company like mp3.com. Mp3.com was, in its birth at least, one of the most innovative digital music companies out there. Artists were free to sign with mp3.com without promising exclusivity. The company did a great deal to enable a wide and diverse base of creators, who could produce new music and sell it on the site. Tied with the fantastic eMusic.com site (which enables unlimited downloads of real mp3s for a flat monthly fee), the potential for this group of companies to help build a revolution in the creation and distribution of content is unlimited.

Except, perhaps, by old debates and even older thinking. So when “legal” writes:

>> Nothing replaces the legal protections provided by registering a
>> copyright with the US Copyright Office–most certainly not your “free
>> license.”

I want say: Of course, and nothing in CC’s mission would limit or discourage an artist from registering copyrights with the US Copyright office. Indeed, we are working on systems to make that registration much easier.

And of course, our “free license” is not meant to replace a copyright registration or copyright protection for that matter. Indeed, without copyright protection, our licenses are useless.

But I don’t get just why artists would not benefit from a “free license,” “legal” at mp3.com? Artists in general don’t make a great deal of money. You’d think eliminating the cost of lawyers would be a great help to them, wouldn’t you? Indeed, if you count the number of “free licenses” that we’ve given away, and you calculate their value the way the RIAA calculates the cost of music piracy, Creative Commons has given more than $100 billion to the creative community. That can’t hurt artists, can it?

>>
>> This email is formal notice for you to cease and desist from further
>> contacting our artists through our web site to solicit for your
>> product/services, which are not sanctioned by us.

[Sigh] again. Again, the greatest thing about mp3.com was that the artists were not owned by mp3.com, or anyone else. They were free. Yet here we are being ordered not to contact “our artists” “through our web site.” I’m not sure just what that would mean, but the tone is very sad. Mp3.com artists are among the most creative artistically and commercially. Shouldn’t they be free to decide how best to sell their songs? Wasn’t that what mp3.com was all about?

>>
>> Legal Department
>> Music & Media
>> Vivendi Universal Net USA, Inc.

Maybe the signature captures it all. The promise of something different at mp3.com — despite great technology and really innovative business ideas — must always compete with “legal.” Innovation must compete with tradition.

Is it impossible to imagine the lawyers ever on the side of innovation?

The bottom line is this: We’ve done lots of work at Creative Commons to change how people think about these issues. I think we’ve done great work. But we’ve obviously not done enough to crack through, even in places like mp3.com. So help us. Enter our contest. Blog better ideas. And tell me how we might get the lawyers to see. A year ago, I was quite confident I knew how. It has been a year of shaking that confidence.

August 7, 2003  ·  Lessig

Next week I’ll be working offline to finish a book (“Free Culture”) before my wife finishes carrying our kid. (And on that subject, check out this). But the blog will continue with Congressman, and presidential candidate Dennis Kucinich. Congressman Kucinich has had a blog for a while (made free under a Creative Commons license). I’m happy to welcome him to this space starting Monday. More on this before then.