Lessig

Jason Schultz has done more amazing work calculating any "chaos" that would come from striking the 1976 Act. Using the Internet Movie Database, he confirmed the Copyright Office's numbers that about 37,000 movies were released in the period 1927-46. (IMDb reports 36,386). Of those, only 2,480 are currently available in any format, or 6.8%. 93.2% of the films during that period are are commercially dormant. Another way to put this: Jack Valenti's crowd says exclusive rights are the only way to assure content gets distributed. So we have a nice experiment: For the films between 1927-46, exclusive rights fails to make available 93.2% of the content produced. Does anyone really doubt the public domain would do better? Jason's email is here.

We're holding a conference on March 1 at Stanford about spectrum policy. If that sounds boring, then you really need to pay a bit more attention to the next extraordinarily important policy issue affecting innovation and growth. There is about to be a very significant shift in how spectrum is managed. One school says it should be propertized; another says it should be treated as a commons. Read: auctions vs. WiFi; or more auctions vs. mesh networks. The question for the conference is which model makes most sense. The day will end with a "moot court" which will be judged by FCC Chairman Powell, Judge Alex Kozinski, economist Harold Demsetsz, and possibly Senator Barbara Boxer. Go here to learn more.

Doc reports being Comfort[ed] by free-IP. Soon hotels will post "Free IP" on their signs, and just as "Free TV" signs seems silly to us today, an optimistic sort might imagine our kids laughing in the future, "how silly, of course IP is free." If only we could find optimism... seesupra.

I received an email from Eben Moglen today. Eben's been donating his time and legal talent to the Free Software Foundation for a very long time. (He, unlike some of us, is a real coder as well as legaloid, and he's about the most impressive and passionate speaker I've ever seen).

Eben's missive was a request for money for the Free Software Foundation. He has put his money where his missive is. Though he has given many times this amount in his own time, he wrote a check this month to FSF for $20,000.

At about the same time I heard about that, I receive a notice from the treasurer of the Eldred Legal Defense Fund (which does not need money at the moment), that we had received an extremely large contribution from "someone in Japan." I tracked it down, and discovered that the incredibly talented Mr. Yamagata, who has translated tons of great stuff, and also has translated my books, has a policy of giving "50% of the money [he] earns from free-software related translation to free-software related projects."

And on the very same day I learned about this gift from Yamagata, I learned of the work of Luke Francl to take a bit from my OSCON speech and try to do some good with it.

If there's one thing I've learned from watching, and tinkering, in this web-log space, it is that the many tiny brushstrokes of thousands paints more and more powerfully than the blast of even the most important and powerful papers. (This is especially true here in Japan, as innovators such as Joi have tried to show.)

But just as these words are important to reason, so too is the support of right-acting organizations important to getting good done. Social entrepreneur Henri Poole (another strong FSF supporter) has built a powerful tool to translate reputation into support. (See the description here.) But whether you use his tools or not, it is at this time of the year when donations are crucial.

As I indicate on my Affero page, I count FSF and EFF as the two key players to support. But whether these two, or two others, do something now. If not as much as Eben, or as principled as Hiroo, then at least enough to show that reason has support.

Stanford's recent stand in favor of knowledge is wonderful. The criticism needs to be matched by strong support. I, for one, a recent transplant to paradise, am proud of my University.

So the price war for broadband continues here in Japan. This snippet, shot from Jiro Kokuryo's phone, tells it all. NTT now offers 12 mbs for about $20/month. And 100 mbs (fiber) for $46/month. According to LowerMyBills.com, I can get 1.5 mbs for $50/month in San Francisco. Where is war when you need it?

After many hours with lawyers, and many productive hours with tech-types, and lots of imagination by many, an idea first suggested by Hal Abelson and Eric Eldred will come to life on Monday, December 16: Creative Commons. Come see (though RSVP because we're filling fast) and celebrate. 'Tis the season to be giving, and this will be a great gift to the Commons.

So just back to Japan after a quick trip to San Francisco to help many many extraordinary people launch Creative Commons. The event was fantastic, especially the Flash that explains our Licensing Project. Watch the flash, and check out the site. We are eager for feedback, and for ideas about where to go next.

I can't begin to describe how grateful I am to everyone who made this happen. I am especially grateful to creators who have run with the licenses right away—heroes such as Cory Doctorow (who will be releasing under a CC license the entire text of his amazing book, Down and Out in the Magic Kingdom as a free, freely redistributable e-book on January 9th. But buy the book as a present. It is the best novel I've read in years), and Peter Wayner (who has licensed his Free for All under a CC license), and Tim O'Reilly (the first adopter of the "Founders' Copyright").

It is no accident that those who understand this are those closest to technology. Our challenge will be to find ways to explain it so other creators get it as well. If you have ideas, or ideas for new projects, please let us know. Our single, overarching aim: build the public domain, by building projects that expand the range of creative work available for others to build upon.

Meanwhile, thanks to everyone who helped make this happen. And check on this channel for more news as the project develops.

Jabber has written a powerful piece about the threat that AOL's patent covering IM technology creates for innovation in the IM market. Even if AOL does not enforce the patent, as Jabber argues, the threat that it may makes is much less likely that innovators will invest time to develop IM technology. AOL's sword will be enough to keep innovation away, Jabber says.

These issues are complex, but this case does lots to highlight just what wrong about the software patent business. Does anyone really believe that there was inadequate incentives to be inventing in this area? Was there really a need for a government monopoly to help spur innovation? And even if there is, does a 20 year monopoly over something as fundamental as IM make sense to anyone?

Vardi and his son were brilliant inventors. They deserve all the credit in the world. And it is exactly the wrong (since self-defeating) response to now attack AOL: They are a business; the managers are hired to make money; they will make money however they can given the rules as they are.

The appropriate response is to attack the system. It is four years since a court held that software and business methods were patentable. What exactly have we done since then to get legislators to fix this mess?

After some questions by readers, and suggestions by friends, Jason Schultz has produced his final report about the effect of invalidating the 1976 Copyright Act's extension of copyrights. Bottom line: more support for the public domain.

Matt Croydon wonders about how CC licenses will interact with software. In a careless earlier version of this, I said they won't. Sam Ruby suggests the most I could mean by that is that our energy will be directed elsewhere. Indeed, that's the most I mean. We share RMS's concern that there is a proliferation of licenses in software. And our view was that there was a dearth for other creative content. Thus we start outside the software world. But creative reuse of creative content is what CC is all about. My apologies for any confusion.

As many are reporting, Marriott now promises Wi-Fi. No word on price. But I've got a word for the idea: Magic. seesupra.

The battle to build and keep broadband neutral is an important issue to me. I go a couple rounds on the FT.COM site about it here. Maybe it is just me, but these debates are never satisfying. The thrust of Tom Hazlett's final response is that cable is much better than DSL, so don't regulate cable. On cable, see the next post. But even ignoring the logic of the claim, we should not forget: However good cable is, does it begin to match the broadband options available elsewhere. Again, here in Japan: 100 mbs for $50 a month; 12 mbs for about half that. What cable company comes even close to that?

If you want to get an idea about how bad the broadband future will be, you need only read this letter from the National Cable & Telecommunications Association describing how good (from their perspective) the broadband future will be. NCTA wrote this letter to the FCC to criticize a letter filed by the Coalition of Broadband Users and Innovators. This Coalition, which includes Microsoft and Disney, told the FCC that it needed to assure that broadband remain neutral—that carriers not be permitted to discriminate in the service they offer based on the application or content the user wants.

This letter from the Coalition was great and important moment in the debate about broadband. I've been critical of Microsoft and Disney in the past, but they deserve all the credit in the world for taking up this fight. If neutrality is lost in the broadband platform, that means the end-to-end design of the internet will be lost as well. And that would profoundly weaken the potential for innovation and growth on the network.

The NTCA letter confirms the worst. After arguing at first that they are providing neutral service anyway (a claim which itself is false: have you checked your TOS re: servers?), they then go on to defend their right to discriminate however they wish. And they defend it by pointing to Microsoft: If Microsoft is allowed to cut special deals with partners, why shouldn't the cable companies?

The level of ignorance here is astounding. We are four years into this debate, and apparently the cable companies have yet to even understand the argument they are attacking. The difference between Microsoft bundling products at the edge of the network, and the cable companies bundling preferred service in the middle of the network, is the difference between an end-to-end network and the Ma Bell network the internet replaced. This letter confirms that the cable companies do not begin to understand the value of end-to-end neutrality. It confirms precisely the claim of the Coalition: that left to its own devices, the dominant broadband provider in America (slow and expensive though it may be) sees no reason in the world why it shouldn't corrupt the basic internet design.

Robert Sachs, president of the NCTA, is an extraordinarily bright man. He is also apparently a very busy man, for there is no way he could have written the letter he signed. The NCTA should spend some more money hiring press people who have taken the time to understand the arguments they want to rebut.

Meanwhile, we, broadband users of America, need to wake up to the broadband environment four years of do-nothing-ness have produced. “Open access” has been a failure in the United States (though a total success in Japan, where competition has driven prices down and service up: 100 mbs at $50 a month); the cable companies are, as we said four years ago, the single dominant provider of broadband in America. Their service is slow; it is getting more expensive; and now they claim the right to corrupt the basic design of the network they increasingly own. My last book was pessimistic: It was not pessimistic enough.

This is my co-counsel in the case, Jonathan Zittrain. An obvious mole. (A mouse like mole actually). No assessment of damage done yet.

I missed a string of comments about CC licenses and software. Shelley raises some great questions. Here's the problem. We're trying to develop tools to enable people to express their preferences as simply as possible. We can't do much to make the underlying law simple.

I've tried to answer some of the questions in the extended entry. But I'm afraid Shelley will be right again: The answers will only raise more questions. There's lots here to work out, and we can't do all the working out.

Time's choice of three who spoke truth is a welcome bit of wonderful news in this not so great year. How strongly the world yearns for those who have the courage to say what is right�straight, truthful talk. If only those who led understood this yearning.

There's a wonderfully careful analysis of various CC issues at burningbird. Thank you. One point to clarify, however. CC licenses are, at this moment, at least, permanent, in the sense that the term is as long as copyright runs (and we'll see whether that's permanent or not soon enough). That issue was a tough one for us (I, of course, favor "limited terms"), and we're eager for feedback on that issue.

But just because you can't revoke a particular license doesn't mean you can't revoke the offer. If, for example, you offer content under a CC license for a month, and then change your mind, you can stop offering the content under that license. Anyone who accepted your offer while it was valid, of course, has a deal. But no one after you withdraw the offer can accept anymore.

Finally, my blog is licensed in the xml. Button coming soon.

We gave CreativeCommons a weblog and RSS feed this holiday season. It seems happy enough.

The Future of Ideas has been translated into Japanese. As sometimes happens, the translation improves the book. Not only is the title better ("Commons", which the American publisher vetoed), but it also has a great and revealing introduction by the translator, Hiroo Yamagata. As always, the translator reveals as much about the work he translates as the world he translates into.

Two weeks ago at the Creative Commons launch, I tried to sell the virtues of building rather than suing. The reality is that we need to do both. As Stanford's Center for Internet and Society has announced, we filed a lawsuit last week to defend the right of Emily Somma to distribute a children's book that builds upon the story of Peter Pan.

Peter Pan was created by Scottish playwright James M. Barrie (1860-1937). The character was born in a 1902 book called The Little White Bird and then developed into the play Peter Pan, or The Boy Who Wouldn't Grow Up, in 1904. In 1906, the section of The Little White Bird that originated Peter Pan was published separately as a book called Peter Pan in Kensington Gardens. Finally, Barrie turned his highly successful play into a book called Peter and Wendy in 1911.

All these works have entered the public domain in America. But because Barrie continued to produce works based on the Peter Pan story, the holders of those copyrights claim that there can be no derivative works using the Peter Pan character so long as those later works remain under copyright. (In England, by special law, the copyright for Barrie's work is perpetual). Thus, the holders of Barrie's copyright claim a perpetual right to control derivative works based on Peter Pan, even though the original work passed into the public domain.

Emily Somma, a Canadian, has written a wonderful children's book, After the Rain, that uses some of the Peter Pan story, but for very different ends. Peter Pan, you might remember, is afraid of growing up. In Somma's story, children rescue Peter Pan from this fear. Thus, like the best of derivative works, Somma's story builds on the past, but does something different with it.

Yet Somma is now threatened with a legal action in the United States if she distributes her book in the United States, even though her work plainly builds on work that is in the public domain. This, we believe, is wrong. It is just one example of an important class of cases where current copyright holders demand the right to control the use of work that is in the public domain just because their work builds upon work that is now in the public domain.

Stay tuned for more news, or tune your reader to the CIS RSS feed for updates on the case. Peter Pan is already free. It's time the law (and lawyers) to recognize it.

It was twenty years ago that I visited my first communist country. In 1982, I trekked through most of Eastern Europe, and a bit of the Soviet Union. I can still remember well the terror at the border to East Germany, when guards searched every inch of my bags before letting me pass. They even forced me to remove my shoes! (The last time that happened to me was, well, I guess SFO.) A Russian woman on the train told me: "Don't worry. As long as you stay on the path, you're fine. It's only people who slip off the path who fall into the abyss."

"The abyss."

I was reminded of that story on my last trip to a communist country. My wife and I just returned from China. The reminder, however, was not the behavior of the Chinese border guards. Indeed, getting through customs and onto a plane there is like it was in the US 20 years ago -- relaxed, respectful, easy, and you even get to keep your shoes. I was reminded instead by the Portland airport story that has been popped in blog space. Stay on the path, and you're safe. Slip, and you're in the abyss.

People -- on both the left and right -- boil in this space about what's happening outside. Yet outside blog space, there is just more of the same. The Times writes about Democratic hopefuls rallying to attack Bush for not making America safe enough. Wonderful. Who ever wins in 2004, we can be assured of more petty fascism to keep America safe.

Where is the candidate who asks: Must we sell our soul to win this "war"? Where is the political party that demands respect for principles that I thought were fundamental. If we must detain Arabs, must we do so inhumanely? If we must frisk every air traveler, can't we at least build in checks to the system to assure that it is not abused? If we must fight to defend America, can it at least be America that we defend?

I'm all with Dave that this space will be the space for political action in the future. If only the future comes soon enough.

Richard Koman has written a great article about Brewster's brilliant bookmobile.