December 2, 2008  ·  Lessig

As I indicated yesterday, I was very encouraged by the decision by the Obama transition team to freely license (not actually a .gov entity, so not exempt from the rights of copyright).

But over the weekend, a bunch of us got together to begin (actually, continue) the process of framing “open government principles.” The first round is described at Politico by Ben Smith.

You can read the rationale for the principles at Put briefly, the three principles are:

1. No Legal Barrier to Sharing (law (copyright law) should not block sharing);

2. No Technological Barrier to Sharing (code (limitations on downloads, for example) should not block sharing;

3. Free competition (no alliances should favor one commercial entity over another, or commercial over noncommercial entities).

Some have framed these as “demands” made of the administration. That’s like saying the mouse can make demands of the lion. We’re not making demands; we’re describing good policy. Or at least, good policy as we see it.

  • Don Marti

    How about No Contractual Barrier to Reading or Listening?

    My biggest concern about government data is being put into a situation where I have to enter into a contract with a non-government entity in order to use it.

    For example, the FCC’s Universal Licensing System once required a proprietary web browser. That kind of requirement in effect made the terms of the software license into an unaccountable, privatized chunk of the FCC regulations. (Last I checked, at least one no-EULA browser can get to ULS.)

    If Presidential speeches are on YouTube instead of a .gov site, the YouTube TOS becomes a Federal regulation. I hope the new administration will make a copy available on a public sector site for viewers who can’t, or choose not to, accept the YouTube TOS.

  • David Mohring (NZheretic)

    Acknowledge the doctrine of first sale for private use.

  • J.B. Nicholson-Owens

    Too few people who supported Obama made demands on him during his campaign and too few pointed out the ridiculousness of not leveraging constitutional power for us to investigate and hold Pres. Bush responsible for his impeachable crimes. I recall Obama’s calling impeachment a dysfunctional distraction. One wonders how many of those crimes will be continued in the Obama presidency.

    It’s perfectly right and proper for us to make demands of the government. History doesn’t teach us that we gain when we ask politely. All significant social gains were made by organized demand just as Douglass taught us: “Power concedes nothing without a demand”.

    I find it hard to celebrate relicensing under a CC-By license when (1) life-and-death issues for which we are responsible are at hand domestically and across the world and (2) I think that should be placing their work in the PD getting ready for a time when government-made work is ineligible for copyright.

  • Andrew

    I think it may be bordering the hyperbolic to say that the YouTube TOC becomes a Federal Reg., but there is no doubt that it becomes a restrictive term of use for information (that I/we) believe should be publicly/non-restrictively accessible. Along the same logic as the above, wouldn’t the terms of use encapsulated by an individual user’s contract with an ISP become Federal regs.?

    Unfortunately, access to the information that we want made available to us – at least, conveniently made available to us via the Internet – require contracts and data formats that may restrict access. There is a difference between requiring proprietary formats, and offering unpopular formats: a proprietary browser does seem like an abuse, but requiring IE over Firefox does not seems particularly coercive.

    Of course, let’s not forget that for this debate to even have relevance to some individuals, they need to have internet access. These levels of freedom and access all exist relatively according to our individual access, fortune, and prosperity. This shouldn’t suppress calls for transparency, but should guide us in formulating policy – should these materials be made available in print/VHS/DVD/etc. in public libraries and despositories? At what further costs?

    P.S. Right-on, J.B. No quarter should be given an Obama Administration that doesn’t investigate what has happened over the last 7 or so years, and upon those findings, level charges at responsible individuals within the Bush Administration. I’m not so sure I agree with “leveraging Constitutional powers,” such motivations and vague interpretations of Constitutional powers are what led to (and lead to) abuses of that power.

    But, as to your final comment: We commend movement in what we perceive a positive direction to reward those steps; just as we rightly point out the misteps of those same individuals. Action without popular reinforcement, positive or negative, exists without a democratic context. We are industrious, involved individuals, and we can level our criticisms, worries, and provide solutions to multiple problems simultaneously. It would be a massive error of judgment to forget (what you believe to be) “trivial” notions of social relations, such as copyright law, while simply focusing our attention on “major” crises.

  • Zane Selvans

    Amazingly, the video response that was just posted on to the open public comments on Healthcare now includes a link to the same video at Yahoo!, and also to a high-resolution MP4 file:

    It’s like the government is working in real-time or something… crazy.

  • Adrian Lopez

    “not actually a .gov entity, so not exempt from the rights of copyright”

    The site is on a .gov domain and it says “office of the president elect” on the front page. How much more “gov” could it possibly be?

  • Henry Lee

    I am not an intellectual or a politically-minded individual. I have no problem standing corrected if I’m way off base, but this whole topic appears to be operating under the premise that what is revealed for public consumption is really and in actuality grounded in the truth. Unfortunately, my thinking has been critically colored by impressions that for decades, the public has been duped to accepting a wide range of falsehoods presented in a well-contrived manner to control the way we think. I personally have faith in Obama being a good guy, but have doubts about who is really in control and wielding the power to affect change and for what reasons.

  • Dan

    When I think of “open government” I also think of FOIA requests, and the idea that such requests should not be necessary in order to make access available to the general public for anything created in digital form that is not classified or otherwise sensitive in some way that merits delay in release.

    There is this fine web site: that publishes documents acquired through FOIA requests. It is still very young, and not many documents are available here yet (though one assumes that they are generally interesting, since someone has expended the effort to put through a FOIA request for each one).

    Why not seek to make this web site as close to obsolete as possible by pre-releasing many documents that would be released under FOIA, to the extent feasible by automation? Even if some of this stuff is delayed in release (sometimes information can be time-sensitive, and is not appropriate to make public until certain processes have played themselves out), it could be released after the sensitive period is over.

    This is real transparency, as long as it has an effective search tool (Google is a start, but it may be useful to add something more proprietary to that), and maybe even an alert tool for processes with pending reports, for opt-in subscribers interested in current activities of specific agencies.

    Furthermore, Obama is trying to figure out what to do with his campaign supporter network. What ways are there to hook that into some more formal method of citizen voice input into governance processes? (Not just an information-sharing community, but a channel for policy-related input to government.)

    Think big, to create a long-term goal, and then see how we can start getting there from where we are now.

    Broadcast-mode transparency would be great in and of itself, but feedback-mode above and beyond mere elections and propietary polls (and not constrained by specific advocacy groups) would be an even bigger step in the direction of participatory governance.

    While we are not about to replace legislators and executive with pure direct democracy, it would be nice to ramp-up the back-channel in such a way that informed citizens can opt to contribute to the process with a minimum of transaction cost obstacles.

  • Paul Russell

    One thing I’d love to see is automatic conversion of all videos into text and pure audio (mp3, ogg). Most of the videos that are posted are simply speeches and there is very little value in sitting and watching the video portion.

    While video is nice to have there are a lot of times when it’s easier to just listen. For example when running or driving, or blind, navigating or viewing video is impractical.

    It would be great to have RSS feeds for all this material in different formats. One for text, one for video, one for audio, and one with all of them. Doing so would make the information easily accessible to most feed readers and listening devices. More importantly it would make the information accessible to more people.

  • Crosbie Fitch

    No legal barrier to sharing?

    How about the natural right to privacy?

    Things like Bill Clinton’s affair with Monica Lewinsky? Should their privacy have been violated by a desire for open government?

    If someone takes hidden camera footage of Obama and a hooker, should this be fair game for sharing – even after it gets on YouTube?

    If it can be argued that lives are at stake, perhaps, but whilst these personal matters remain of no such concern, I suggest they should remain exclusive to those privy.

    Government should be open, but not necessarily the private affairs of its staff.

  • zoobab

    Youtube is problematic, since it uses patented and royalty bearing codecs, such as h264:

    Mr Obama is choosing formats that are not legally compatible with Free and Open source software.

  •|en&hl=en&ie=UTF8 stelt

    YouTube’s using Flash at the moment, not exactly the most open and semantic format.
    With HTML5 video tag (and Theora) support coming up in browsers, hopefully YouTube will change.
    It would do ‘wonders’ on the marketshare of the least open (looking at open standards support) browser.

  • تفسير الاحلام

    I find it hard to celebrate relicensing under a CC-By license when (1) life-and-death issues for which we are responsible are at hand domestically and across the world and (2) I think that should be placing their work in the PD getting ready for a time when government-made work is ineligible for copyright.