September 22, 2008  ·  Lessig

Russ Gooberman wrote to tell a happy story about Major League Baseball.

A month ago, I created a mashup clip of some MLB’s All-Star Game Home Run Derby. Specifically, I wanted to feature the record-breaking home run streak of Texas Rangers youngster, Josh Hamilton. So, I cut up some YouTube footage of his longest homerun of the contest, and set it to the audio of the final homerun sequence of the movie, The Natural. The next day, the mashup was featured on SportsIllustrated.com as their “Video of the Day.” Here’s My Mashup.

The following day, MLB Advanced Media sent a trademark claim to YouTube, and had the video taken down. I was sent this notice from YouTube:

“This is to notify you that we have removed or disabled access to the following material as a result of a third-party notification by MLB Advanced Media claiming that this material is infringing:”

Using the YouTube notification process, I sent a counter-notification to MLB Advanced Media, which read as follows:

“Under established Fair Use principles, if a work is considered transformative, it does not represent an infringement. This video in particular, is extremely transformative. First of all, it takes less than a minute of footage out of an over three hour exhibition. Secondly, the footage is edited differently than the original telecast. Thirdly, the entire soundtrack has been removed and replaced. Fourthly, the footage itself has been altered, added to, subtracted from, and has had the meaning changed altogether.

The work shows ONE of over thirty home runs Mr. Hamilton hit in the contest. Clearly, this cannot be any kind of substitution for the actual footage of the event. It is provided as symbolic footage to give historical context. As such, it specifically helps the interests of Major League Baseball in publicizing the significence of this event.

The purpose of this transformative piece was to provide commentary on the event itself, and to compare the event to a historically important moment in baseball history. This quality of providing commentary to further public discourse, is another specific component of Fair Use doctrine, that allows for the use of copyrighted material.

This piece is fully non-commercial. The website behind the creation of this piece takes in zero revenue, and is a free entertainment service. Non-commercial use is another standard by which copyrighted material is allowable for re-use.

The historical recording and capturing of Hamilton’s Derby performance belongs to Major League Baseball. The event, in itself, does not. The interpretation of such an event in the public discourse is not for Major League Baseball to determine or influence. These events that affect our perceptions of our national pastime cannot be copyrighted. The discussion and dissemination of ideas relating to them cannot be censored.

There are countless cases of MLB pursuing copyright infringements that go beyond their rights as copyright holders. Evidence of overzealous prosecution has been abundant. This Sisyphean struggle to stop any and all interpretations of MLB material will eventually fail.

In the past, Major League Baseball has been a pioneering force in American progressive social movements (see Jackie Robinson’ s breaking of the color barrier, or Curt Flood’s resistance changing the face of American labor movements). It is a shame that Major League Baseball has chosen to drag its feet and has failed to encourage a more open dissemination of information in this matter.”

Within one day, not only had MLB Advanced Media relinquished its claim on the video, but had gone out of its way to feature the mashup on the official MLB entertainment blog.

So, I guess the moral of the story is that if you take the time to use the proper channels, and let the giant media conglomerates know you’re willing to put up a fight, they may decide that you’re not worth their time. Hopefully we can use these tactics to forward the cause of fair use and creative commons-owned properties.

Happy news indeed.

September 22, 2008  ·  Lessig

So here’s an embarrassing confession: I’m a member of the Clear program. If you fly a lot, you will have seen a growing number of airports with this beautiful blue cube at a security check point. If you’re not paying attention, you might not understand what they are. These are premium security check points, meaning you pay Clear a fee, hand over some biometric data, and they give you a Clear card. Then you get to use the Clear card to pass through this special security line. (Weirdly, you still need to produce a photo ID, but never mind).

Why would anyone ever do this?

I find the worst part of travel is the uncertainty caused by variable events — the need to bury 60 minutes to be sure that you can get through security when 80% of the time it would only take 20 minutes. For people like Joi Ito (and to a lesser extent, me, meaning people who travel way too much), that adds a huge amount of wasted time to the travel schedule.

The great advantage to Clear is that you are 95% certain that security will take no more than 10 minutes. Usually it is much much less. Meaning you can shave tons of time off of time at the airport, meaning you can add lots of time to time at home (for me, with my kids).

For some of you, the advantage may well be worth the cost. And if it is (and here’s the real reason I’m advertising this here), you could lower the cost to me if you use this referral code — [removed -- see comments] — when you sign up here. That code, in other words, gets me a month free.

Scandalous, I know, me pushing this privacy-reducing technology, though beyond the biometric data, I’m not sure what additional data I’m actually providing to the world beyond what is already there, and I’m not a deep skeptic of biometrics. But there’s no requirement you use it (you’re free, of course, to go through the standard line if you want to), and there’s lots of promises about how the data won’t be used (though of course, in a world of immunity granted to corporations cooperating with the government, no one should trust those promises). But here’s how I calculate it for me: I flew about 50 times last year. If this reliably saves me 30 minutes each flight, that’s 25 hours saved. At minimum wage, that just about pays for the privilege. And at the value I place on time with my kids, it pays for itself many many times over.

September 11, 2008  ·  Lessig

SusanG at the DailyKos has a callout for John Cole’s post about earmarks. As Cole put’s it:

The total national debt, as I write this, is $9,679,000,000,000.00 (nine and a half trillion).

The Budget for 2008 is close to $3,000,000,000,000.00 (three trillion).

Our budget deficit for this year is going to range in between $400-500,000,000,000.00 (four hundred to five hundred billion, give or take a few billion).

The total value of earmarks in 2008 will be approximately $18,000,000,000.00 (eighteen billion).

In other words, when McCain talks about earmarks, he is talking about 3% of our annual budget deficit, .6% of our annual budget, and a number too small to even report when discussing our national debt. Or, put another way, he is talking about two months in Iraq, something he wants to keep going indefinitely.

Not only are they lying about Palin’s involvements with earmarks, they are just not being serious about the horrible economic problems we face. These are not serious people.

I think this is missing the point. True, earmarks are small potatoes. But the problem with earmarks is that they’ve become an engine of corruption. The explosion after the Republicans took over under Newt was because they were a newly deployed source of influence, designed (too often) to induce or repay a gift (or what others call, a campaign contribution).

Liberals should be as upset with this as conservatives (though for different reasons no doubt). And we should especially (imho) resist the “if McCain believes it it must be wrong” trope. McCain is right to criticize earmarks. Whether he (or Palin) can do it credibly is a separate matter.

September 9, 2008  ·  Lessig

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My next (and the last) copyright/culture book, Remix, will be coming out this fall, and I’m miles behind in preparing a site. If you’re able to volunteer to help with the DESIGN, I’d be grateful. Please email me, and thanks!

Update: Thanks for all the offers. I think I’m set on this.