February 11, 2007  ·  Lessig

You’ll recall Shloss v. Sweeney, the fair use challenge brought by the Stanford Center for Internet and Society’s “Fair Use Project” last June, on behalf of Carol Shloss, a Joyce scholar at Stanford. The case challenges the abuse of copyright by the Joyce Estate, interfering with the academic work of Joycean scholars. (The story of that abuse is recounted in this fantastic piece in the New Yorker.)

On Friday, we passed an important hurdle. The district court has denied the defendant’s motion to dismiss. The decision was quick, and is very well and completely reasoned. Judge Ware did permit the estate to strike a paragraph from the complaint (we were probably getting wordy in any case). But every element of our complaint remains — including, importantly, the copyright misuse claim.

Most of the work in the case has been handled by Stanford CIS Fellow David Olson. Since joining CIS to head the “Fair Use Project,” Tony Falzone has also become a key player in the case. Tony argued the case before Judge Ware. We’ve also had great support from a Joyce scholar, and lawyer with Howard Rice, Robert Spoo, as well as the firm of Keker & Van Nest. These attorneys, and the others at CIS (including many extraordinary students) deserve a great deal of thanks.

It is rare for the press to talk about issues in the copyright beyond “piracy.” The New Yorker piece is a nice exception. My hope is more cases like this will lead people to recognize the many more issues here beyond whether people “take” music for free.

February 6, 2007  ·  Lessig

The Net’s ablaze with talk about Steve Job’s call for the end of DRM for music. That is really fantastic news and contrary to what many of us had believed he believed. For one feature (from Apple’s perspective) of DRM is that it ties iTunes to Apple devices. No DRM would end that tie as well.

So bravo to Apple and Steve Jobs. About this I am happy to be proven wrong. But then here’s a simple next step: There are artists on iTunes whose creative work is Creative Commons licensed. Colin Mutchler is one. When his stuff first went into iTunes, he requested the DRM be turned off. The request was refused. But if no-DRM is Apple’s preferred policy, then let them begin here.

February 1, 2007  ·  Lessig


For almost a decade now, many of us have been pushing for copyright reform that would address the problems of orphan works. That was a key motivation behind the attack on the Sonny Bono Copyright Term Extension Act. It was the focus of my op-ed in the NY Times after we lost in that attack. That op-ed proposed one system for dealing with orphan works — register your copyright after 50 years and pay $1; if you don’t the work passes into the public domain. That proposal was the basis of Congresswoman Lofgren’s “Public Domain Enhancement Act,” which was partly responsible for Senators Hatch and Leahy asking the Copyright Office to study the problem of “orphan works.”

The Copyright Office’s report is brilliant. Its proposal is less brilliant. Its essence is that a work is deemed an “orphan” if you can’t discover the copyright owner after a “reasonably diligent search.” If the work is deemed an orphan, then the copyright owner’s rights are curtailed.

I think this both goes too far, and not far enough.

Too far: By applying the remedy to all works immediately, the work imposes an unfair burden on many existing copyright holders — who have followed a rule which since 1978 has said, don’t worry about such details; it puts an especially unfair burden on foreign and unpublished copyright holders. In my view, photographers and other existing copyright holders are right to be outraged at the proposal. Hiding under the cover of “reasonably diligent search,” much of their work will be — unfairly — threatened.

Not far enough: The trigger to the Copyright Office’s Orphan Works Remedy is whether a copyright owner can be found with a “reasonably diligent search.” That standard is just mush. The report outlines six factors to be considered in determining whether a search is “reasonably diligent.” The effect of this complexity is simply make-work for lawyers. Libraries and archives will be unfairly burdened. Users won’t be able to achieve any real security.

The alternative I propose is a kind of copyright maintenance procedure (like patent maintenance). It differs from the Copyright Office’s proposal in three critical ways:

First: It applies just to old works, not to new works. For works after enactment, copyright owners get a 14 year grace period where they need not worry at all about any orphan work requirement. For work published between 1978 and today, there’s no orphan work requirement until 2021. And for work published before 1978 (in a time when formalities were the norm), there is no requirement until 2012.

Second: It applies to published “United States works” only — not to foreign works or unpublished work.

Third: The requirement it imposes after the 14/5 year delay is registration. But not registration with the copyright office; instead, registration with a private registrar approved by the copyright office. No government run registries here. Instead, something more like a DNS for copyright.

This chart at the top summarizes the differences.

You can download a one-page description of the proposal here.

You can download or stream the (35 minute) presentation here, or watch it on Google Video below.

February 1, 2007  ·  Lessig

Over the next couple months, I’m going to try to put together short presentations outlining arguments for six Internet-related proposals that I believe Congress should enact over the next year. The trailer-description for each follows:

Copyright: Orphan Works: Orphan Works legislation is critical. Nonetheless, I strongly oppose the Copyright Office’s “Orphan Works Proposal.” I think it is extraordinarily unfair to current copyright owners, and insanely inefficient. My proposal applies an “Orphan Works Maintenance Requirement” to older works only; the requirement is a form of registration.

Copyright: Remix Culture: Congress should carve a robust exemption to the law for non-commercial remix. Commercial use of such remixes should be regulated by a baseline statutory license.

Network Neutrality: No surprise: I support Network Neutrality legislation. Unfortunately, too many of the reigning proposals are, imho, radically too difficult to enforce. I’ll propose a much simpler rule to enforce that would achieve the legitimate objectives of NN.

Spam: The email system is broken. A bazaar of private remedies to deal with spam now clog the system to defeat many of its original objectives. I’ll propose a modified version of an earlier idea to deal with this problem — a problem that costs the American public many times the total profits of the recording industry, but has gotten but a fraction of Congress’s attention.

Harmful to Minors Material: There’s a simple and minimally burdensome way Congress could protect kids online from material deemed “harmful to minors.” Not perfectly, but certainly better than the current regime. And without constitutional risk.

Deregulating Spectrum: Crude radio technology used to make regulating spectrum necessary. Smart radio technology makes it — in many cases at least — unnecessary. We should be pushing to deregulate where technology makes that possible.

I hope these presentations will be no more than 15 minutes long. The first presentation will be posted later today. Unfortunately, it is about 35 minutes long.