February 25, 2005  ·  Lessig

I dumped the following into the veins of the email system, one to each person who had signed a petition asking for reform of the copyright system.

Sorry about the intrusion, but an important opportunity has come up for you to have a positive impact on the direction of copyright law and I wanted to let you know about it directly. Thanks to some prodding by a couple of great US Senators, the copyright office is currently considering whether to recommend changes to copyright law that will make it easier and cheaper for you to use “orphaned works” — works that remain under copyright but whose “owner” can’t be found. As many of you have written me, this is a real problem that affects thousands of innovative people every year. But the copyright office still needs some convincing.

To convince them, we need your help. If you have a relevant story, or a perspective that might help the Copyright Office evaluate this issue, I would be grateful if you took just a few minutes to write an email telling them your story. The most valuable submissions will make clear the practical burden the existing system creates. (One of my favorite stories is about a copy-shop’s refusal to enlarge a 60 year old photo from an elementary school year book for a eulogy because the copyright owner couldn’t be found.) Describe instances where you wanted to use a work, but couldn’t find the owner to ask permission. Explain how that impacted your ability to create. Or pass this email on to someone who you know might have a useful story to add.

The Copyright Office is already overworked and understaffed, so I’m not asking that you stuff their inbox with demands for action, or anything like that. They are not Congress. They are not even the FCC. Their role here is as fact-finder, so “just the facts, ma’am.” (Oops, do I need permission to use that?)

Everything you need to do this is online at http://eldred.cc. We’ve explained exactly what the copyright office is asking for, how and where to submit your email, and provided some examples of stories we’ve heard from others about how their creativity has been stalled when they’ve tried to use orphan works. If you have questions, there’s a contact email there for people who can help you out.

In spite of my usual pessimism, I think we have a real opportunity here to move the law in a positive direction. Please help us “promote the Progress of Science” (and that text is in the public domain), by
showing the Copyright Office where unnecessary regulation hampers progress.

Stupidly, I did the sending myself, and so stupidly (but predictably), I failed to click the signature box, so it didn’t have the requisite “opt out link.” That was a mistake, and I apologize for it, but the missive brought a bunch of angry emails about my “spamming” them.

Those complaints evince the unfortunate shift in meaning of the term “spam.” As my post does not ask for money or propose a commercial transaction, it is non-commercial. It is therefore bulk email, but not, in my view, spam. More importantly, while people should do what I stupidly didn’t do (include an opt-out option), and people should not do what I’ve not done (abuse a list — this is the second time in almost two years that I’ve used the list), we should not be stigmatizing the use of bulk mail for political or policy related purposes.

  • Harry Porterfield

    slow night?

    turn off your computer, get in your car, get your wife flowers, take the 101 home and take your wife out to dinner.

  • Dave Lugo

    Speech isn’t free when it comes postage due.

    Signed,

    One you spammed.

  • Dave Lugo

    Some more detail – to fill in the blanks:

    I gave eldred.cc my email address a couple of years ago,
    for a petition.

    I asked them to remove me the last time they mailed me. At
    that time, I thought the mailing wasn’t for the same purpose
    as what I had given it to them for, and I complained.

    I then received unsolicited bulk mail from them, and it
    didn’t even give me an option to opt-out. The former is
    spam, the second is stupidity.

    So, sir. You spammed. It’ s not about content, it’s about
    consent.

  • http://taint.org Justin Mason

    The definition of spam as “unsolicited commercial email” isn’t one shared universally; many of us consider unsolicited bulk email, even of a noncommercial variety, spam too.

    In my spam corpus, I have:

    - over 5000 virus-generated anti-immigration screeds in German from an outbreak last year;
    - several spams promoting religious meetings, or just proselytising a particular faith (including the famous “Gouranga” spammer! – http://www.joewein.de/sw/spam-neateye-gouranga.htm );
    - several political spams from all ends of the spectrum.

    In my opinion, these are all spam, and I think most people would agree. This is also how the SpamAssassin project defines it: http://wiki.apache.org/spamassassin/Spam .

    You may consider yourself above this, given that you feel strongly about the issues involved — but if someone has asked to be removed from a list, it’s only reasonable to assume they mean it!

  • James

    Jesus, Dave and Justin, grow up. Lessig made a mistake. He apologized. He practically flagellated himself over his mistake.

    You guys are completely pathetic to take the whip and continue lashing him.

    Morons.

  • http://www.newmediaexplorer.org/sepp/ Sepp Hasslberger

    I got the mail and although unsolicited, I thought it was interesting. There must be many recipients who had a similar feeling and who got right down to doing something, like write to the copyright office.

    What I did was post the text as a comment on a recent article on my site. The article tells about Science Commons, a new CC initiative to make exchange of scientific data easier.

    I think we have to take the good with the bad. If we want free exchange of information, we can’t be too rigid on what we call spam. A good email program will filter most of it out, allowing work but also that fortuitous coincidence whereby you get information that you would never have willingly subscribed to.

  • http://www.digger.net Dave Walton

    James: Prof. Lessig apologized for his mistake in omitting the opt-out link, which is well and good, and nobody is lashing him for that. But he ended his apology by insisting on the legitimacy of his action in sending the emails, based on a definition of spam that is (clearly) widely disputed. THAT is what Dave and Justin were responding to, and for my part, I agree with them. And “Morons” was uncalled for.

    As far as I and many others are concerned spam is Unsolicited Bulk Email. Emphasis on BULK. I don’t care whether you are trying to sell something, 419 people, phish people, save the whales, ban nukes, nuke the whales, or brag about your report card. If you are sending out thousands (or millions!) of copies, you are spamming. Period.

    On the other hand, I do have two mitigating factors that I take into consideration:
    1. If we have an existing relationship of some sort, and you provide me the genuine ability to opt out, it’s generally not a big deal.
    2. I reserve the right to set aside my annoyance at spam on a case by case basis, depending on merit.
    Prof. Lessig stumbled a bit on #1, and apologized. But it’s ok, because he was solidly protected by #2.

    In summary: No harm done, but it WAS spam. :)

    Dave

  • http://www.digger.net Dave Walton

    Lessig wrote:

    Those complaints evince the unfortunate shift in meaning of the term “spam.”

    I disagree that a shift in meaning has occurred. Way back when the infamous Green Card Lawyers invented major-league spam, the primary cause of protest was their global cross-posting. The commercial nature of their postings was also a grievance, but only in the sense that the subset “commercial spam” is more evil than the generic “spam”. Quite the opposite of you, I’ve always felt it unfortunate to see people shifting the meaning of spam from UBE to UCE.

    we should not be stigmatizing the use of bulk mail for political or policy related purposes.

    Again, I must respectfully disagree. I took no offense at your mailing, mainly because I tend to agree with your work. But I must insist that political/policy bulk mailings are still spam. Weakening my stance on that point would undermine my credibility in objecting to the infinite number of crackpot political/policy rantings that I would rather not have filling my inbox at my expense.

    Really, what it comes down to is whether spam is objectionable based on delivery method (UBE) or content (UCE). I set my position firmly on delivery method, because basing it on content is the proverbial first amendment slippery slope.

    Dave

  • Mark Murphy

    Some thoughts, based solely on your description of what transpired:

    • When the people “signed a petition asking for reform of the copyright system”, did they sign up to receive future mailings on the subject? If not, what you did qualifies as spam for most people.
    • “this is the second time in almost two years that I’ve used the list” — that’s actually worse. Not only do people have to agree to future mailings, but they need to remember that they agreed to future mailings. Remember: spam (like beauty) is in the eye of the beholder. You should either set up a regular monthly or bi-monthly newsletter that you use for these mailings (so recipients are more likely to remember they’re supposed to be getting it), or simply accept that people will consider it spam.
    • “It is therefore bulk email, but not, in my view, spam” — I agree with the other commenters on this. While anti-spam legislation has focused on UCE, most long-time Internet users would consider any unsolicited bulk message to be spam, and most new Internet users would consider any mail they don’t want to get to be spam. One thing you could do to help with the last scenario is to include in your first paragraph a reminder of the nature of your relationship with the recipient (“Four score and seven weeks ago, you signed a petition I organized, asking for reform of the copyright system…”).

  • David Brownridge

    Put it another way: did the recipients of Lessig’s bulk mail at any stage “opt in”?

    (That’s not a rhetorical question: I don’t know what they thought they were signing up for when they signed the original petition.)

  • http://www.gweep.net/~crimson/ jzp

    Mark Murphy’s first bullet is spot on.

    Obviously, if you goofed and apologized then that’s the end of it, but for the part where an otherwise clued individual goes and claims that the line moved.

    Spam has never been about content. Any “line moving” has been done by the spammers in the past and if you think of where *their* line is as some kind of ‘starting point’ then you are just late to the game. And yes, this includes the politicians who make up legal definitions that allow them to spam and telemarket to us.

  • James Day

    Your email wasn’t UCE. It was possibly spam, which includes all unsolicited bulk solicitations, not just UCE. Whether it was spam or not depends on the disclosed purpose at the time the email addresses were collected and whether your mailing was for that purpose and from the disclosed sender.

    Since the email wasn’t directly in relation to that particular petition, it seems likely that I’d consider it to be spam, even though it’s about the same general subject.

    Opt out links on unsolicited bulk mail are insufficient and shouldn’t be used – they are too often used as a way to confirm that an email address is live. Don’t even think of clicking on one (and don’t expect including one to make any difference at all to whether the email is considered spam by recipients). This may be inconsistent with various laws mandating inclulsion in unsolicited email. If so, it’s unfortunate that the law is law without good basis in the reality that every small busines or poilitical group in the US sending only one such email would give a volume so large that opting out would be impractical.

    Opt out links are of use for solicited emails, to indicate that consent for the solicited email has ended.

    I suggest soliciting addresses for you to use for any IP-related issue which causes you to want to contact a large number of people. Remember not to use the addresses to relay solicitations from other groups – if you want to do that, better to collect an email address for that purpose, so those who want one but not the other don’t have to abstain from both.

  • John Didion

    Good thought, James…how many people get angry at MoveOn or some other activist-oriented group for “spamming” them? Probably close to none, since it’s opt-in, and, more importantly, easy to opt out.

    Why not start the Copyright Action Network (hey, it even has a decent acronym :). Set up a web site where you post action items and have a page where people can opt in/out of a mailing list that you use to announce those action items that are particularly important or urgent. You could send one last message to your current “mailing list” (after carefully processing all the unsubscribe requests) asking those who still want to receive this kind of thing to sign up for the new list.

    Seems like this would solve your problems (while obviously creating the new problem of having to do the work to set up and maintain the website, but hey, isn’t that what grad students are for? :)

  • K

    In my world, if an email arrives to me and it was unsolicited (I didn’t sign up for an email list), and I’m one of a zillion receipients and there is no attempt to address me as an individual, it’s spam.

    I only want the following in my email box:
    1) Email from friends and fmily.
    2) Email from mailing lists and such that I explicitly ask for.
    3) Email from “friends of friends” – i.e. I might not know them, but they have a specific reason to contact me vs the entire world “Bob told me you could help me with this” qualifies “Please random person, help us save the world” does not.

  • http://spamwars.com Danny Goodman

    I suspect you dodged even more bullets by being Prof. Lawrence Lessig. If the same list of recipients had signed some other petition sponsored by a less popular figure, and then received a mailing similar to yours (even with full CAN-SPAM compliance), the roof would be at a much higher altitude.

    It wouldn’t surprise me if your sending IP address has found its way onto various blocklists, reported as spam by some recipients. Be prepared to have some of your mail blocked at some incoming ISPs over the next 12 to 48 hours.

    With all due respect, your plea for not stigmatizing bulk email for your intended purpose has the same flavor as spammers’ justifications for ignoring the consent issue for what they send (e.g., with the possibly good and honest intention of saving the recipient money on inkjet cartridges). Even worse for your potential causes, future petitions may garner fewer signatures if you don’t include prior consent options (ideally, through a confirmed opt-in process).

  • Josh Stratton

    Meh. I wouldn’t beat myself up over it, nor do I see what the big deal is.

    With regards to communication, implicit consent is the default rule. If you have a front door, you’re considered to be fine with people walking up to it, knocking, and talking to you. If you have an address, the same goes for mail. If you have a phone, the same goes for calls. Why would email be any different? If someone doesn’t want to incur the natural costs of having these avenues of communication, it’s their problem. They can always get rid of their email. Complaining that the email system does what it’s supposed to do — send and deliver email — makes no sense.

    If someone doesn’t want to be communicated with, it’s their responsibility to provide reasonable advance notice of this, such as by setting up clearly visible ‘no solicitors’ signs. And even then, while the freedom of speech of the speakers certainly wouldn’t force you to accept messages in your private demenses, I find it unlikely that it would not permit them to make the attempt. They still can’t force your receipt of it, and not every single attempt will necessarily rise to the level of being some sort of offense, e.g. harassment.

    The mere fact that some people are highly discriminating as to who they want to hear from should not require the world to submit to their whims. It’s no real burden at all to not open the door, to not pick up the phone, to throw out the mail, or to delete unwanted mail. If someone cannot be troubled to do that, how can they possibly have the gall to demand that the rest of the world take more significant measures to avoid imposing the most trivial of discomforts. Certainly no one is holding a gun to their heads and making them engage in conversation.

    Provided it’s not misleading, and that requests to opt out are obeyed, I have no qualms with commercial spam. Nor should any spam be sent in a harassing manner.

    Aside from that, however, I’m going to side with freedom of speech, and therefore spammers. The alternative, where people cannot communicate without explicit permission, is unacceptable in a free society. A free society might not be entirely convenient or enjoyable (e.g. having to put up with Illinois Nazis) but thems the breaks.

    And before people go around besmirching my character, let me point out that I probably hate ads more than any of you. I filter everything pretty rigorously, even the pictures of Prof. Lessig’s books at the top of the blog page. I’ll get an augmented reality set the first instant I can, and immediately filter out ads, jingles, logos, etc. from the real world too. But my personal views simply must not be imposed on everyone else! That goes for the rest of you too. People should be free to accept ads if they like, or free to reject them if they like, and this means putting the burden on the rejectors.

    So you might have committed a minor faux pas, Professor Lessig, but that’s the worst of it. I’m more upset with the rest of the folks here.

  • Andrew Boysen

    To Josh Stratton:
    I’m with you here,

  • http://blog.russnelson.com Russell Nelson

    Larry, it doesn’t matter if the email is commercial or not. What matters is that it’s 1) bulk, and 2) unsolicited. If email has those two attributes, it’s spam. Your real faux pas is in not explaining where you got the list of email addresses. You have to say, up front, “I’m sending you this email because you sent me email about ….. If your interest in this issue has waned, please tell me and I’ll remove you from my list of interested parties.” That gives you cover of solicitedness.

    At least people aren’t asking for you to resign from your leadership role, sigh.
    -russ

  • Kenneth Loafman

    Even “Amber Alerts” would be considered spam if they were not solicited. The working definition of spam is “Unsolicited Bulk Email”, with emphasis on unsolicited. It has nothing to do with being commercial. Why would we want political spam? religious spam? name-your-cause spam?

    …Thanks,
    …Ken

  • Simon

    Josh wrote: “If someone doesn’t want to be communicated with, it’s their responsibility to provide reasonable advance notice of this, such as by setting up clearly visible ‘no solicitors’ signs. “

    Can you explain how I could do this in the email environment?

    I think Mark Murphy said it best. It’s not the content, it’s the form that matters. (Granted, if I’d recieved one of these emails from Prof Lessig, in this situation, I probably wouldn’t have minded too much, but in general I don’t see a difference between commercial and non-commercial spam).

  • Josh Stratton

    Simon:
    Damned if I know. I was talking about this today, and the closest approximation (aside from after the fact opt outs) would seem to be to include some reasonable notice in your email address, since it couldn’t possibly be redacted for sending without the redactor having at least constructive knowledge.

    The ultimate answer would be to redesign email, but I don’t like where this leads in terms of that it opens the door for people to redesign the free wheeling internet into something more like AOL. On the whole, if spam is a side effect of being able to do things on the net without some entity overseeing people’s behavior, I’ll put up with the spam. It can still be filtered or deleted. Getting spam is not like dragging a cross around.

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