June 29, 2005  ·  Lessig

There’s a fascinating and important battle going on in Lafayette, LA. Citizens are pushing a referendum to permit the Lafayette Utility System to sell bonds to fund a project to “expand its existing fiber-optic network in Lafayette to everyone in the city.” The move is being fought by the telcos — who would rather bring much more expensive DSL and cable to everyone in the city. John St. Julien and Mike Stagg have been blogging the fight. There’s a great website explaining it. And today they’ve announced the winners in the “Fiber Film Festival,” a film contest run to explain the benefits of fiber.

The theorists, of course, who live life in theory-land, object. In theory-land, all this stuff should be provided by the market. In theory-land, the government should stay away. And I’m quite sure, in theory-land, there’s lots of cheap, fast broadband available to everyone. Yet most of us don’t live in theory-land. And some of those unlucky real world people living in Lafayette have a good shot at getting something that the rest of us real world sorts only dream about — cheap, fast broadband access.

Good luck with the referendum, Lafayette. Your example might well bring the rest of us down from the clouds of theory-land.

June 26, 2005  ·  Lessig

So I posted a notice about the Register’s testimony about section 115. I’m in the middle of the cc-iCommons-Summit, so I didn’t have much time to say anything of substance. My post simply points again to the 1967 testimony about compulsory licenses, and it highlights the point about nondiscrimination.

From this, two highly respected (by me and many) commentators have offered a critique of my comment. Ernie and Joe Gratz both praise aspects of the Register’s proposal. They translate that praise into criticism of my comment.

I too would praise much in the Register’s proposal. She is right to identify the debilitating effects of the transaction costs in the existing system. And she should be praised for looking for new, creative ways to avoid those costs.

But my criticism was quite local and specific, and not really addressed by either Joe or Ernie. My criticism was about the potential for discrimination. The Register is almost exactly right to say “But in determining public policy and legislative change, it is the author – and not the middlemen – whose interests should be protected.” Almost exactly right, because in my view, we should be determining not just “the author” but “the authors” — the ecology of creativity enabled by copyright’s rules. The wonderful and powerful claim in the 1967 testimony is that granting fewer derivative rights to composers than we grant to, say, book authors, produces a wider range of music creativity. I find this argument to be compelling.

So I am concerned with the fact that “[n]othing” in the proposal “obligates a copyright owner to utilize a MRO, but the increased efficiency of that structure provides an incentive for them to do so, just as they have all utilized performing rights organizations.” For I’m not convinced that the decision to include rights within a MRO is solely a function of transaction costs.

That will of course invite the question — “why should composers have fewer rights than authors”? (Joe criticizes the “massive and ongoing wealth transfer from song writers to record companies.”) My answer — which I’ve blathered on about elsewhere — is that this has it backwards. The restriction on speech — which every derivative right is — should have to justify itself. And that “justification for private rights,” as libertarian law professor Richard Epstein puts it, “has to be social.” The particular difficult justification presented by this extremely odd “private right” is framed well by Professor Rubenfeld. That work, and of course the work of many others, should lead us to ask again and always: how broadly should the law secure “derivative rights” — remembering again that copyright was born with no derivative rights.

So yes, I too praise Ernie’s proposal to eliminate the “copy” right within copyright. I too agree with Ernie and Joe and the Register that we need a more efficient way license online content. But there is an important freedom that neither address that I think copyright needs to address: the right (for free or under fair and nondiscriminatory terms) to build upon culture.

June 24, 2005  ·  Lessig

According to Cathy Kirkman of Wilson, Sonsini, Goodrich and Rosati, the Register of Copyrights has decided to propose abolishing the compulsory right granted by section 115 of the Copyright Act. This is the provision that gives recording artists the right to record “covers,” so long as they pay a specified fee.

Remember this quote from a 1967 House Judiciary Report, considering a modification to the law as it existed then:

[T]he record producers argued vigorously that the compulsory license system must be retained. They asserted that the record industry is a half-billion-dollar business of great economic importance in the United States and throughout the world; records today are the principal means of disseminating music, and this creates special problems, since performers need unhampered access to musical material on nondiscriminatory terms. Historically, the record producers pointed out, there were no recording rights before 1909 and the 1909 statute adopted the compulsory license as a deliberate anti-monopoly condition on the grant of these rights. They argue that the result has been an outpouring of recorded music, with the public being given lower prices, improved quality, and a greater choice.

Copyright Law Revision, Committee on the Judiciary, 90th Cong. 1st, Sess., Rep. No. 83 66 (March 8, 1967).

Apparently the Register believes performers no longer “need unhampered access to musical material on nondiscriminatory terms.” What progress.

June 24, 2005  ·  Lessig

You’ll find at the Microsoft IEBlog an announcement that will surprise some. I’m happy it doesn’t surprise me.

Following Dave Winer’s decision to release his spec for RSS 2.0 under a Creative Commons Attribution-ShareAlike license, Microsoft has now released its spec for “Simple Feed Extensions” under a Creative Commons Attribution-ShareAlike license.

This isn’t the first Microsoft site licensed under a Creative Commons license. There’s a very cool PatternShare site that builds on Microsoft research licensed under a Creative Commons Attribution license. But this is the first under a ShareAlike license. That’s right – the “copyleft” “ShareAlike” license. People are free to modify and redistribute the spec so long as the modifications are licensed under a similar license.

Also notable is Microsoft’s representations regarding patent:

As to software implementations, Microsoft is not aware of any patent claims it owns or controls that would be necessarily infringed by a software implementation that conforms to the specification’s extensions. If Microsoft later becomes aware of any such necessary patent claims, Microsoft also agrees to offer a royalty-free patent license on reasonable and non-discriminatory terms and conditions to any such patent claims for the purpose of publishing and consuming the extensions set out in the specification.

These steps signal important flexibility and sophistication within Microsoft. For anyone who knows people at that place, this is old news. But even if old news, very very good news.

June 21, 2005  ·  Lessig

So as reported about two months ago, the Free Culture Movement turned one in April. I promised a present. At the time, we were organizing a call in recording of “Happy Birthday,” from some of the leaders of the free world. Well, finally, after some struggle clearing rights, and after lots of nitpicking on my part, we’ve released the song. Check out the page at Creative Commons, donate something in support, and download the song.

Sorry for the delay.

June 21, 2005  ·  Lessig

So the world is bursting with extremely cheap, very good high quality digital cameras. No doubt the vast majority of images snapped (is that the verb these days?) with those cameras are by people who have no interest in enforcing a copyright. Yet as Grant pointed out to me, the AP reports, an increasing number of photo labs are refusing to print “high quality” digital images, out of fear that they “might” be professional photographs, and therefore, “printing the pictures might be a copyright violation.”

This begins to make plain a point Rusty Russell suggested to me in an email recently: No doubt copyright is a property right. But why isn’t anyone out there defending the property rights of digital camera owners? This is a conflict in property rights, produced by an insanely inefficient property system — copyright. The solution is not, as some seem to believe, to abolish copyright. It is instead to abolish the insanely inefficient part. Yet it is the character of our time: to argue against inefficiency is to mark yourself as a “communist.”