October 31, 2006  ·  Lessig

So as noted here before, Britain is considering extending its copyright term for recordings from 50 years to 95 years — including both existing recordings and recordings in the future. (Remember, we increased our copyright term to “harmonize” with the Europeans; now the Europeans are increasing their copyright terms to “harmonize” with the US. Will this cycle end? Of course not.)

The ippr just released a very smart report about IP issues generally. It identifies well the errors in this pattern of extension. (The report is not free for downloading (a problem it didn’t note), but an executive summary is here.) And a new activist group in Britain, the UK Open Rights Group will soon release a short policy paper.

But the real problem with this debate is that the proponents for term extension are (1) sexy media figures who (2) only discuss the issue in well choreographed events that allow no real opposition to their views to be heard, while (3) the press never adequately covers events where the issue is properly, and adequately, addressed.

Exhibit one in support of the above: This piece by a favorite of this page, Andy Orlowski (remember his really nasty piece about my representing Hardwicke in the boychoir case, ending with: “Lessig has shown an ability to clutch defeat from the jaws of victory before.” No followup by Andy after the verdict.) Orlowski usually gets media issues right. But this piece is full of the most obvious errors. (E.g., he refers to “the estimates of economic Armageddon that term extenders propose – which may be £143m over 10 years, according to PriceWaterhouseCooper,” never pausing to actually analyze what this “Armageddon” is: The argument is that Britain hurts because a £143m tax is not imposed on the British people in order to benefit the likes of Sir Cliff. Talk about trickle down economics.)

But reporters just to report what they see. So I take it Orlowski didn’t see the full story. No surprise, since as he mentioned, the “panel discussing the issue was loaded with advocates for extending copyright terms, and only one dissenter.” Ah yes, Soviet style public policy discussion, again itself not remarked in Orlowski’s article.

The sexy will never stoop to debate this issue in a fair and balanced context so long as they get away with “debating” it in the sort of contexts they do. And they get away with it only so long as the press and politicians permit them to. So let’s let this permitting stop: Britain should demand a debate about these issues in a context in which both sides get a real and balanced opportunity to present the views.

(Meanwhile, don’t miss Jonathan Zittrain’s presentation at the Open Rights Group “Release the Music” event on November 13. Details here and here.)

I’m eager that an alternative get pushed into this debate. As mentioned before, MP Don Foster has suggested terms should be extended only for those who ask. For works whose copyright owners don’t ask, the copyright would pass into the public domain. I made a similar proposal to the Gowers Commission. It would be fantastic if Britain took the lead in this obvious compromise to an obviously mistaken policy — term extension for existing works.

Meanwhile, as a demonstration of the value of the public domain, if you’re not in the US, you can get access to this fantastic collection of 1500 LPs of classical music, in the public domain in Europe, but not in the US, digitized and made available by the EuropeanArchive. Don’t count on access to this anytime soon, United States: Nothing published will enter the public domain in the US through the expiration of a copyright term until 2019.

October 30, 2006  ·  Lessig

So I decided this year I would respond personally to everyone who has donated to CC. Each Paypal donation sends a copy to me, and I write a note in response. (An official tax-ready thank you gets generated by some machine later, but I wanted the first cut at the thanks).

It is an amazing process. I had expected I would know most who would donate; I know practically no one. They come from across the world, in every amount, some sometimes give twice.

I can’t express adequately how grateful I am to those who support us. Partly that’s the technology — most imagine the emails must be machine-generated; partly that’s the limits to language — we practice overusing “thank you”; how can we mean it when we really do?

Anyway, thank you again. (And I apologize if I’m a bit behind. I’ll get through all of them.)

October 28, 2006  ·  Lessig

There’s a storm raging about NBC’s refusal to run ads for the Dixie Chicks’ new movie, Shut Up and Sing. As the Washington Post reports, NBC told the ad agency, the network would not run the ads because “they are disparaging of President Bush.”

This is nothing new for NBC. In August, 2004, I wrote about an attempt by filmmaker Robert Greenwald to license a 1 minute clip from Meet the Press, in which the President explained his reasons for going to war. Greenwald was denied the permission, his agent told they could not use it because the clip was “not very flattering to the president.”

At that time, a lawyer from NBC protested to me that what I had written was not true. I asked how he knew that. I had interviewed the woman who had spoken to the NBC permissions person. I had known her independently of this incident. I knew her to be an honest person. So how did he know she was lying?

Because she must be lying, I was told. NBC would never do anything like this.

Right. Never. Except at least twice.

October 26, 2006  ·  Lessig

With the launch of the second Creative Commons fundraiser, I have begun again a series of letters about Creative Commons.

The first letter is here. (Spanish — thanks to Maria Cristinia Alvite)

The second is here.

The archive of letters (including last year’s) is here.

You can subscribe to them here.

Or you can just donate $300,000 here and we can call the whole thing off.

October 23, 2006  ·  Lessig

There’s a great line in Gore’s movie about how he thinks about the process of making presentations. Each time, he says, he goes through the presentation “removing blocks” — trying to understand where people aren’t understanding what he’s saying, and changing it so there is understanding. Sometimes it’s not possible, of course — sometimes there’s just disagreement. But sometime disagreement is just misunderstanding.

As I read some of the responses to my post about Web 2.0, I’m beginning to have a Gore moment. I used the word “ethics”; that word is creating a block. Many read that word (reasonably, of course) to suggest I’m trying to impose a moral code on the the Web; distinguish good from bad, right from wrong; a kind of PCism for PCs.

That’s a totally reasonably way to read what I wrote. It’s not, however, the point of the post. I don’t have a moral code to impose on the Web. I was instead describing the elements, as I see them, of a successful Web 2.0 business. My argument is not “do X because it is good”; my post was “do X to keep and spread the success you’ve had.” My claim is not that walled gardens never prosper (see, e.g., AOL). It is that walled gardens wither (see, e.g., AOL), at least in the environment of Web 2.0.

It was clumsy to try to frame that point as a point about ethics. I realize in reading the responses, I hang the normative within “morals”; ethics, in my (private?) language, is about how we (differing depending upon the group) behave. So in that sense, it was how Web 2.0 companies behave, not because god told them to (remember: amoral), but because they believe this is how best to behave.

But there’s another set of responses I don’t think there’s a simple way to answer. There’s a certain mindset out there that thinks the way the world was cut up in college is the way the world is. So whatever set of texts you read as a sophomore, somehow they define the nature of world forever. Seared in your brain is the excitement of figuring out the difference between Capitalism and Marxism, or communitarianism vs. libertarianism. And so significant was this moment of education that everything else in life must be ordered according to these sophomore frames.

I don’t know the best way to respond to this sort of soul. Obama apparently addresses it in the context of politics, when he comments that the last 3 presidential elections have all been framed in terms of the debates of the 1960s (Vietnam, the sexual revolution, etc.), and the best response to this framing is just to move on.

That’s what I wish would happen here. Put your college philosophy books away, and start reading research about what’s happening now. Understand it first, then craft the label. Because when you understand what, say, von Hippel is writing about, it has absolutely nothing to do with communism/communalism/communitarianism/commuwhatever-you-want. It’s all about how business prosper in a new technological environment. There’s a good argument (indeed, great books) skeptical about whether there is a new technological environment. Fair enough. But there are also businesses “democratizing innovation” (free PDF here) not because they’re a bunch of communapinkos, and not because they miss the Cultural Revolution.

October 23, 2006  ·  Lessig

So Nick Carr charges me with launching the Cultural Revolution, in a post dripping with references to the evils of communism, and with a triumphant close: “The Cultural Revolution is over. It ended before it even began, The victors are the counterrevolutionaries. And they have $1.65 billion to prove it.”

Wow.

The point of my Web 2.0 post is probably clearer to anyone who read my earlier post about the three economies of the Internet — commercial, sharing, and hybrid. As that post suggested, in my view, the really critical question for the Internet economy is how well companies negotiate the hybrid economy. In my view, those who follow Web 2.0 values are likely to profit most; those who don’t, won’t. Thus, when David Bowie tries to jump into the mashup/remix world by offering prizes for the best remix of his content, but demanding the rights to all the creativity produced by the remixers, he’s violating a Web 2.0 principle, and by doing so, weakening the extraordinary potential his effort could have. Put differently, sharecropping is no better a strategy for the virtual world than it was in the physical world.

Yet if you don’t see that there are different economies, then of course if follows that any effort to argue in favor of less control sounds just like communism. (Not technically, of course, because the control under all the communism we’ve seen was shifted to the state, it wasn’t eliminated. But this is a detail red-baiters often overlook). If there is just the commercial economy, then an argument in favor of exercising less control over content sounds just stupid — like arguing to GM that it should give every 5th car away for free.

But if you really don’t see that there are different economies, then I suggest you spend sometime reading the very best scholarship about what’s new about the Internet. Benkler, Weber, and von Hippel are my favorite examples; though not directly on point, much in Chris Anderson’s The Long Tail points in the same direction.

And if you don’t have time to read, then ask yourself a simple question: Is Jimmy Wales a communist? (Anyone who knows him knows how absurd the question is, but even if you don’t know him, you can figure it out.) There is no better, more effective advocate for the sharing economy. The project he’s helped steward — Wikipedia — is perhaps the sharing economy’s prize. But when he advises companies, and others trying to use the net, how best to build upon the value of the Internet, is he just doing Chairman Mao’s work?

I hope YouTube is an extraordinary success — much bigger than it has been so far. (Carr says YouTube is my “villain.” I must really be confused, because in the very same week, YouTube was my hero). It will be so, I believe, if it plays by the rules of the hybrid economy. A hybrid neither gives away everything, nor does it keep everything. And I’d suggest we’ll find that golden mean more quickly if we left the red-baiting to the 20th century.

October 23, 2006  ·  Lessig

Former FCC Chairman William Kennard published an op-ed in the New York Times Saturday. The main point of the piece is to lament the truly awful state of broadband access for the poor in the United States. One statistic (not mentioned by Kennard) says it all: As the OECD reported, the United States has the 4th highest level of students (by 15 years old) who have never used a computer — worse than Greece, Poland, Portugal, and the Czech Republic.

What I found extraordinary about the piece, however, was its slam of “network neutrality” legislation. As he wrote:

Unfortunately, the current debate in Washington is over “net neutrality” — that is, should network providers be able to charge some companies special fees for faster bandwidth. This is essentially a battle between the extremely wealthy (Google, Amazon and other high-tech giants, which oppose such a move) and the merely rich (the telephone and cable industries). In the past year, collectively they have spent $50 million on lobbying and advertising, effectively preventing Congress and the public from dealing with more pressing issues.

So let’s get this straight:

After 8 years of deregulating broadband in America (begun by Kennard, completed by Martin), both DSL and cable are free of any real obligation to protect the original neutrality of the Internet. Once some rules imposed in merger agreements expire, last-mile broadband providers will be free to pick and choose the content and applications they want the network to carry. They will use this power, as at&t Chairman Ed Whitacre explained, to tax the most successful content and application providers on the net. That tax, as I and many have argued, will effectively block the next generation greats.

Over these same 8 years, following this policy of deregulation, we’ve gone from 1st in the world to rivaling, as Kennard puts it, Slovenia. Broadband on average is slower in the US, and more expensive. In France, a triple play “Internet, Telephone, and TV” package is $32. Comcast offers less for $150.

At some point, you might think some would begin to worry about whether the US strategy makes sense. (compare: State of Denial). Forget the theory, forget the hand-waiving by academics and ideologues: Just ask one simple question — is the policy working as well as the (different) policies of our competitors?

I. and many, have concluded it is not. I take it, that is the view of the more than a million who have written to policy-makers arguing for network neutrality legislation. These people want policy that will finally push broadband providers to provide at least the quality and price of broadband in France. The online campaign to get Congress to do something here has been amazing, rivaling only the campaign to stop the FCC from passing rules that would permit even more concentration in media ownership.

But now comes Kennard to belittle this extraordinary online movement. It’s not a battle, he tells us, about whether competition in applications and content, ultimately driving penetration, will continue. It is instead a battle about whether the “extremely rich” will prevail over the “merely rich.” Nothing important in that battle, he tells us (except perhaps to these various flavors of the rich); Congress should therefore move on from this agenda for billionaires, and take up the real challenge of serving the poor.

It’s funny, I hadn’t realized I was a Google tool. I had thought we were pushing to reverse a failed policy because we wanted to enable the next Google (that was my point about YouTube). I thought we were angry because the “merely rich” had yet to provide broadband as broadly as in other comparable nations. And I thought we were fighting the efforts of the “merely rich” to further reduce competition, either by buying up spectrum that would enable real wireless competition, or by getting state laws passed to make muni-competition illegal. I had thought these were important issues for the new economy — keeping the platform as competitive as possible, to keep prices and quality moving in the direction they move in the rest of the developed world.

Now that Kennard has set us straight, however, I’m relieved to know we can finally move onto other, more important issues. Global warming is at the top of my list. Maybe you have other priorities.

But before we move on, let’s not forget:

Even if America’s broadband strategy doesn’t make sense for America, it makes lots of sense for certain companies. Kennard knows this well, because he sits on the board of many of those who benefit most from this deregulation. His op-ed acknowledges his work with the Carlyle Group. He is also on the board of Sprint Nextel Corporation, Hawaiian Telcom and Insight Communications (a cable provider). These companies will benefit directly if Kennard succeeds in getting Congress to forget Network Neutrality. They will become “merely richer” at the expense, I believe, not of Google or eBay, but of the next gang of kids with the next great idea that Google, and eBay (and Comcast and at&t) just don’t get.

I don’t know Kennard personally. People who do tell me he’s an extremely bright, ethical man. I’m sure that’s right. But there’s something unseemly to me when an FCC Chairman moves to the boards of the companies he used to regulate, and then uses the op-ed page of a paper on whose board he now sits, to argue for the poor by pushing the agenda of the “merely rich.” (How can a paper that obsesses to pretend its most brilliant writers have no opinion of their own not wonder about the weirdness here?)

They say Washington has to be like this. You could never get great people into government if they couldn’t cash-out once they left. But I bet if the next President demanded of nominees to the FCC that they promise not to take jobs in the industries they regulated for some “limited time” (let’s say, the life of a copyright), the President would find lots of qualified nominees. Maybe then it would be easier to hear the pleas for the poor, without the echo of the interests of the “merely rich” confusing the message.