June 12, 2007  ·  Lessig

I’ve been a fan of dotSub for sometime. The site enables collaborative subtitling of video. So far, the subtitling is just different languages. Very cool would be subtitling as commentary (think Pop-up video). Watch a CC video, or the infamous “my pirate kid” video from ARTE.de:


June 8, 2007  ·  Lessig

Engadget reports that “the head honcho of Macmillan Publishers” lifted a couple Google laptops at a recent BookExpo America, and then when he returned them, retorted “hope you enjoyed a taste of your own medicine,” and “there wasn’t a sign by the computers informing him not to steal them.”

So this betrays an astonishing level of ignorance, even for a “head honcho.”

Remember (and I did a 30 minute preso here to explain it) Google Books proposed to scan 18,000,000 books. Of those, 16% were in the public domain, and 9% were in copyright, and in print. That means, 75% of the books Google would scan are out of print but presumptively under copyright.

The publishers and Google already have deals for the 9%. And being in the public domain, no one needs a deal for the 16%. So the only thing the publishers might be complaining about is the 75% which are out of print and presumptively under copyright.

With respect to these, Google intends to index the books, and make them searchable. If a hit comes through the search engine, Google offers snippets of the text relevant to the search. The page includes links to libraries where the book might be borrowed; it includes links to book stores where the book might be purchased. And, I take it, if the “publishers” were to choose to publish the book again, it would also include a link to that publisher.

Finally, any author who wants to be removed from this index can be removed. As with Google on the net, anyone can opt out.

So vis-a-viz a computer sitting at a demonstration booth at a conference, is the “head honcho’s” action like Google’s?

Obviously not. And let us count the ways:

(1) Any such list must begin with the point obvious to all since the beginning of something called “IP,” but set to poetry by Jefferson. Read the full quote at the Connexions project. But the relevant line marking the difference here is this: “Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it.” If the “head honcho” has Google’s computers, Google can’t use them. But if Google indexes out of print books, that does not — in the least — reduce the access anyone else has to the same property.

(2) A computer sitting at a marked booth at a conference is like the 9% in print, and under copyright. With respect to those, Google has deals with the publishers. So the “head honcho’s” action is more like offering in print, in copyright books for free, and in total — something Google is emphatically not doing.

(3) If the computer was not sitting at a market booth, but instead was in a trash dump (like, for example, the publishers out of print book list), or on a field, lost to everyone, then that fits the category of property that Google is dealing with. But again, Google doesn’t take possession of the property in any way that interefers with anyone else taking possession of the property. The publisher, for example, is perfectly free to decide to publish the book again. Instead, in this case, what Google does is more like posting an advertisement — “lost computer, here it is, is it yours?”

(4) Or again, imagine the computer was left after the conference. No easy way to identify who the owner was. No number to call. In that case, what would the “head honcho’s,” or anyone’s rights be? Well depending upon local law, the basic rule is finders keepers, loser weepers. There might be an obligation to advertise. There might be an obligation to turn the property over to some entity that holds it for some period of time. But after that time, the property would go to the “head honcho” — totally free of any obligation to Google. Compare copyright law: where the property can be lost for almost a century, and no one (according to the publishers at least) has any right to do anything with it. Once an orphan, the law of copyright says, you must be an orphan. No one is permitted to even help advertise your status through a technique like search engine.

(5) Or again, imagine the computer was a bank account in New York. And imagine, the bank lost track of the owner of the account. After 5 years, the money is forfeited to the state. Compare copyright: in New York state, a sound recording could be 100 years old, but no one has any freedom with respect to that sound recording unless the copyright owner can be discovered.

The list could go on, but the obvious point is this: Physical property and the intangible property we call copyright are different. Jefferson pointed to one difference. But the really crucial difference that I’ve been trying to get people to see is that physical property systems have a host of techniques to assure that the property system is efficient. Copyright does not. Copyright is the least efficient property system constructed by government — which is saying a lot. And rather than continue sophomoric debates about who is “stealing” what, it’s about time that policymakers — and industry leaders — took responsibility for the inefficiency that copyright is.

June 5, 2007  ·  Lessig

So I spend a great deal of my time insisting that my work, and the work of others in my “movement,” is about promoting something other than “piracy.” And indeed, I was in the middle of explaining exactly that to ARTE TV here in Germany when my cover was completely blown. Check out circa 5:10 in the video linked at the bottom of this page or download it here. (Thanks, Michael!)

June 4, 2007  ·  Lessig

Following the good practice of others, and following suggestions of inconsistency by others, I offer the following disclosure statement.

How I make money

I am a law professor. I am paid to teach and write in fields that interest me. Never is my academic research directed by anyone other than I. I am not required to teach any particular course; I am never required or even asked by anyone with authority over me to write about a particular subject or question. I am in this important sense a free laborer.

I also get paid for some of my writing. I write books that are sold commercially. Three (and I hope soon all) of my books are also available freely in electronic form. I have been commissioned to write articles for magazines. But in all cases, while I may contract about the subject matter I will address, I never contract about the substance.

I have (though rarely) been paid to consult on matters related to my work. If I have, I conform my behavior to the NC Principle articulated below.

I am sometimes paid to speak. If I am, I will contract as to subject matter (e.g., whether the speech is about innovation, or copyright, or privacy, etc.). I do not contract as to substance. In addition to an honorarium, I also accept payment to cover travel expenses.

I am not compensated for my work with nonprofits.

Tech

I am a paying customer of Movable Type. Marc Perkel gives me a great hosting deal. If ever anyone sends me a product to review, I am resolved not to write about it.

Business Attachments

I have no regular clients. I am on board of a number of non-profits, including EFF, FSF, PLOS, FreePress, PublicKnowledge, and Creative Commons.

I serve on no commercial boards. I don’t take stock-options to serve on boards or advisory boards.

The Non-Corruption (NC) Principle

It is a special privilege that I have a job that permits me to say just what I believe, and not what I’m paid to say. That freedom used to be the norm among professionals. It is less and less the norm today. Lawyers at one time had a professional ethic that permitted them to say what they believe. Now the concept of “business conflicts” — meaning, a conflict with the commercial interests of actual or potential clients — silences many from saying what they believe. Doctors too are hired into jobs where they are not allowed to discuss certain medical procedures (See, e.g., Rust v. Sullivan). Researchers at “think tanks” learn who the funders are as a first step to deciding what questions will be pursued. And finally, and most obviously, the same is true of politicians: The constant need to raise money just to keep their job drives them to develop a sixth sense about what sorts of statements (whether true or not) will cost them fundraising dollars.

With perhaps one exception (politicians), no one forces professionals into this compromise. (The exception is because I don’t see how you survive in politics, as the system is, without this compromise, unless you are insanely rich.) We choose the values we live by ourselves. And as the freedom I have to say what I believe is the most important part of my job to me, I have chosen a set of principles that limit any link between money and the views I express.

I call these principles “non-corruption” principles because I believe that behavior inconsistent with these principles, at least among professionals, is a kind of corruption. Obviously, I don’t mean “corruption” in the crudest sense. Everyone would agree that it is wrong for a global warming scientist to say to Exxon, “if you pay me $50,000, I’ll write an article criticizing global warming.” That is not the sort of “corruption” I am talking about.

I mean instead “corruption” in a more subtle sense. We all understand that subtle sense when we look at politicians. We don’t recognize it enough when we think about lawyers, doctors, scientists, and professors.

I want to increase this recognition, even at the risk of indirectly calling some of my friends “corrupt.” Norms are uncertain here. I hope they change. But until they change, we should not condemn those with differing views. We should engage them. I intend this to be the beginning of that engagement.

So, the NC principle:

The simple version is just this: I don’t shill for anyone.

The more precise version is this: I never recommend as policy a position that I have been paid, either directly or indirectly, to recommend.

The precise version need to be precisely specified, but much can be understood from its motivation: “Corruption” in my view is the subtle pressure to take views or positions because of the financial reward they will bring you. “Subtle” in the sense that one’s often not even aware of the influence. (This is true, I think, of most politicians.) The rule is thus designed to avoid even that subtle force.

So: “I never recommend as policy a position“: This is meant to distinguish work as a lawyer from work as an advocate. I don’t do legal work for money. But everyone understands that when a lawyer speaks for his client, he speaks for his client. The corruption I am targeting is a lawyer or academic speaking not for a client, but presumptively, for the truth. And “recommend” means in any public forum — so an op-ed, testimony, or a lecture.

that I have been paid directly“: This is the easy part of the principle. “Directly” means that I’ve received cash or other such compensation, or that I receive research support, or funding that I otherwise wouldn’t have been entitled to.

or indirectly“: This is a harder line to draw in general. The boundaries for me, however, seem pretty clear. In my view, I would be “indirectly” benefited if an institution I was responsible for got a significant benefit from an easily identified interest.

So, for example, I do no fundraising for my law school. My position, and the Center I run there, depends in no way upon my raising funds for either. Further, the commitment I have from my dean to support the Center is independent of any fundraising. As Dean Sullivan told me when she recruited me, “fundraising is my problem. Yours is to do the work.”

Thus, if you give a substantial amount of money to Stanford, you don’t, in my view, indirectly benefit me — because you have not made my life any different from how it was before you gave that money. (Indeed, given the hassle that usually runs with such gifts, you’ve likely made my life more difficult.)

Creative Commons presents a different question. A substantial contribution to Creative Commons — an entity which, as its CEO, I am responsible for — would, consistent with the NC principle, limit my ability to “recommend as policy a position” that was directly connected to the contributing entity.

So far, beyond the foundation grants CC has received, there have been two such “substantial” contributions to Creative Commons. With neither would I ever “recommend as policy a position” that benefited either — even if I believed, independently, that the position was correct. This doesn’t mean I wouldn’t help such people, or advise them. It simply means I would not publicly say something about their position, after such support was received.

I acknowledge one might well quibble with the “substantial” qualification here. Why not “any” rather than “substantial”? That may be the right position, at least ultimately. But as I view the matter now, the gifts beyond these two are so small as a proportion of CC’s budget that they don’t meaningfully change my work for CC at all.

But isn’t disclosure enough?

Some would say this principle is too strict. That a simpler rule — indeed the rule that governs in most of these contexts — simply requires disclosure.

I don’t agree with the disclosure principle. In my view, it is too weak. The best evidence that it is too weak is the United States Congress. All know, or can know, who gives what to whom. That hasn’t chilled in the least the kind of corruption that I am targeting here. More generally: if everyone plays this kind of corruption game, then disclosure has no effect in stopping the corruption I am targeting. Thus, in my view, it is not enough to say that “Exxon funded this research.” In my view, Exxon should not be directly funding an academic to do research benefiting Exxon in a policy dispute.

(There is a difficult line here that turns upon practice. When I was at Chicago, professors received summer research grants. Those were awarded by the Dean. To make the funders happy, the professor would write “this research was supported by a grant by XXX.” But never was the money given in light of the work, and most of the time, it wasn’t till after you had finished something that you discovered who had “funded” the work. I don’t mean to be targeting this sort of behavior at all. Again, the funding the professor received was independent of the grant by XXX.)

What the NC principle is not

The NC principle is about money. It is not about any other influence. Thus, if you’re nice to me, no doubt, I’ll be nice to you. If you’re respectful, I’ll be respectful back. If you flatter me, I doubt I could resist flattering you in return. If you push causes I believe in, I will likely push your work as well. These forms of influence are not within the scope of the NC principle because none of them involve money. I mean the NC principle only to be about removing the influence of money from the work of a professional. I don’t think there’s any need to adopt a rule to remove these other influences.

Why is money different from flattery, or being a liberal? Good question. Lots of obvious reasons. (For example, think about how hard these other “corruption principles” would be to implement: “I can’t support X because he supports the Democratic party, as I do.” “I can’t testify in favor of Y because its President said something nice about me.” Talk about perverse incentives…)

Someday I hope time will give me the opportunity to say more about why in depth. But for now, I mean only to specify the scope of my principle: It is a principle about isolating one form of influence from the work that I (and I hope my colleagues) do. We (in legal academics, and imho) get paid enough not to have to worry about selling testimony.

Thus, one friend wrote me with disappointment about something I wrote that could be viewed as a favor to someone else. So long as money is not involved, I’m all for this kind of favor. We should be doing favors for people we agree with all the time. Especially people on our side of the debate: we need to become at least as good as the other side in cultivating a community of support.

So what does all this promise?

If you believe I am following my principle, then you can still believe I am biased because I’m a liberal, or wrong because I’m an idiot, or overly attentive because I’m easily flattered, or under-attentive because I punish people who behave badly. All that the NC principle promises is that I am not saying what I am saying because of money.

As applied

I have been living these principles for many years. So my purpose here is not to announce any new policy. You can agree or disagree with the principles. You can believe them too strict, or not strict enough. They are significantly stricter than anything within the academy just now. No doubt, many may believe they are way too strict.

But whether you believe them too strict, or not strict enough, I would encourage you to engage them. Consistent with my NC principle, I will reward kindness and insight with at least kindness. I will ignore people whose argument style stopped developing in high school. But because this is an issue I very much want to continue to work on, the only thing for sure is I won’t accept money to consult around it. (And of course, there are millions throwing hundreds of millions at me to do this, so this is a REAL sacrifice.)

Finally, and again, I don’t offer this as a tool to condemn. I offer it because I believe this is a conversation we all should have.

June 4, 2007  ·  Lessig

After my debate last week at CISAC (at Google Video here), The Register published a piece (archived) about the event. I’ve received a bunch of angry email about what was reported in that piece. The relevant quotes offered in the Register’s article, however, are not correct.

First, The Register writes that I said: “I have two lives,” he said. “One is in Creative Commons…the other is in litigation against authors.”

In fact, I said: “I have two lives in this. One is leading Creative Commons. And the other [is leading] litigation which is , I’m sure, in conflict with the views of many people about copyright.” Listen to the clip here: mp3, ogg.

Second, The Register also wrote that I said: “No one at Creative Commons has attacked authors.” That’s certainly true. No one working at Creative Commons has ever “attacked authors.” However true, the quote is not what I said.

In fact, I said: “Nobody who works for Creative Commons has ever attacked collecting rights societies in the way you described.” Listen to the clip here: mp3, ogg.

Third, The Register wrote that I said: “I assert that there is no fundamental disagreement between the objectives of the societies and the objectives of Creative Commons.” This caused many from the “movement” to complain that in fact there were important conflicts between Creative Commons and Collecting Rights Societies.

In fact, what I said was: “I assert that there is no fundamental disagreement between the objectives of the Collecting Rights Societies, as you’ve described them and the objectives of what Creative Commons is trying to do.” The qualification is important, because Brett Cottle had described compromises that Collecting Rights Societies were making to fit with the digital age. While I don’t believe it’s accurate that all Collecting Rights Societies have been as progressive as Mr. Cottle suggests, I do believe that if they were, there would be “no fundamental disagreement” between them and our objectives. Listen to the clip here: mp3, ogg.

Fourth, some complained that I had referred to the work of creators who don’t intend their creative work to be licensed commercially as “a secondary class of creators.” Actually, of you read The Register’s piece carefully, you’ll see that the first time that quote is used it states “a second class of creators.” The second time it appears “second” has morphed into “secondary.”

All I meant to do was to distinguish one class of creators — professionals, who create for money — from a second class of creators — those who create for the love of creating, and not for the money. I did not say that these creators were of a second class. Indeed, my whole point was that these creators too deserved “respect.” That point is conveyed quite accurately by the International Herald Tribune piece about the same debate.

Finally, The Register wrote something that has led at least one blogger to believe that I am employed by Google. I don’t think a charitable interpretation of what The Register wrote could support that reading. But to the extent it does, let me state clearly that I am not employed by Google. Nor do I represent them. The suggestion of a conflict in The Register’s piece has, however, led me to craft a disclosure statement that I should have published (ala Dave Weinberger and Ethan Zuckerman and Dana Boyd) long ago. I will post that statement tomorrow.