Lessig

It now looks like there's a very good chance that Iowa will do the American democracy more good tomorrow than any election has done in the last generation.

If the polls are to be believed (or if caucusers turn out according to the polls), then a majority of the Democracts will be voting for a candidate that places fixing the corruption that is Washington at the very top of his agenda. Both Edwards and Obama have made this their core message (Populist hero Edwards more than new generation Obama), and if the majority of Democrats in Iowa ratifying that message gets understood, we may see this election go a long way towards fixing the problem that I think is the single most important problem facing government today.

As I've said before, I don't think this is a Dem/GOP issue. But it is the case that the only credible campaigns attacking it are now from the Democratic side of the isle. The grotesqueness of the last 7 years perhaps leads the GOP to ignore the issue. The allegiance of the establishment Democratic candidate (HR Clinton) leaves an open field for the "less experienced" Obama and Edwards.

But in that charge ("less experience") lies all the promise of these two reform candidates. If you were asking how best to reform a corrupt Police Department, would anyone think that someone experienced inside the department was likely to be an effective reformer? I'm not saying it's not possible: Someone living inside that corruption could finally boil over with revulsion at the system that they are living within. Precisely that revulsion is what many of us were looking for Clinton to demonstrate. But we got none of that. Instead, we got a full throated defense of lobbyists. Thus, even if it is possible that an "experienced" politician could reform the system, the experience of HR "Lincoln Bedroom" Clinton is not likely to manifest that zeal for reform. She and her husband prospered from that system. Why would they ever work to dismantle it? She asks in her final 2-minute plea to Iowa: "Who is ready to be president and ready to start solving the big challenges we face on day one?" That's not the question. The right question is this: "Who sees fixing the corruption that is government as the most important challenge we face on day one, and who is likely to have the will to do it?"

Edwards and Obama are different from Clinton in this respect at least. Both are single term Senators -- in it enough to be revolted by the system, both aching to force change upon it. I concede it may be hard for some to choose between them. I think it is a moment of celebration that the Dems have two with this ethic at their core. And while I would not criticize anyone who caucused for Senator Edwards, as I've already indicated, my pull for Obama comes not just from knowing him a bit personally, but also from the aching desire that we let, to borrow from JFK, the torch pass to a new generation. Imagine what America looks like from the outside when this mixed race American (a redundancy, to be sure), who opposed this horrible blunder of a war from the start, is sworn in as President. And imagine what America looks from the inside, when all those under 50 see a man who doesn't actually remember Woodstock defining for a generation those things worth remembering.

It is a hopeful moment. Please, Iowa, make it real.

As Reuters reports, Congressman Tom Lantos has been diagnosed with cancer and is retiring from Congress.

Lantos has had an extraordinary career in Congress. A Holocaust survivor and a Hungarian, he has been on the right side of most things in his million plus year tenure in Congress (ok, 26 years). In 2004, I supported his Democratic opponent on the principle that Democrats needed to express their opposition to the war at a minimum by opposing those Democrats who supported the war (and the Patriot Act).

But we are all sorry to hear of Congressman Lantos' illness, and thank him for his public service.

"Let the word go forth from this time and place, to friend and foe alike, that the torch has been passed to a new generation of Americans."

post-NH update:

This was the first of many, before the final in November. As John Edwards put it, "The status quo lost."

From the "[old] generation of Americans": "I'm not dead!" (See The Holy Grail, The Dead Collector)

Thank you, Iowa.

Senator Clinton says: "We're all advocating for change. We all want to change the status quo, which is George W. Bush and the Republican domination of Washington."

Really? Is that the "change" being called for by Edwards and Obama? Because I heard their call for change to be bigger than this. To be more fundamental. We've not made progress if change gets us to a world where lobbyists influence Democrats rather than Republicans. It's not "change" if we get back to a world where the Lincoln Bedroom goes to a leading Democratic fundraiser rather than a Republican. If the only "change" at stake here is a change in the party in control, then there's no much to get excited about.

Update: Some have misread this to be a kind a Nader-esque post -- that three's no difference between the Dems and Republicans, etc. I don't mean that at all. I think there is a hugely significant difference between the DEMs and GOP, and between Obama/Edwards and Clinton, on the single issue that I care most about -- whether we will see any progress in reforming the corruption that is Congress.

For the first time since March, Obama is ahead of Clinton in the Iowa futures market. And for the first time ever, he's above 50%. 53.2% to be precise.

Some important news in the continuing struggle to reckon the First Amendment and copyright. For those not following this in depth, here's the story so far:

In Eldred v. Ashcroft, the Court was asked to subject a copyright statute to First Amendment analysis. The Court declined that request. Instead, the Court held that so long as copyright act does not change the "traditional contours of copyright protection," further First Amendment review is not required.

That standard left open the question of what the "traditional contours of copyright protection" were. In three follow on cases, lower courts have now addressed the question. In all three of these lower court cases, the government has argued that by "traditional contours of copyright protection," the Eldred court meant simply the "idea/expression" dichotomy and "fair use." Thus, the only possible First Amendment challenge to a copyright statute, according to the government, is if the statute changes one of these two "traditional First Amendment safeguards," as the Court in Eldred referred to them.

Plaintiffs in these three lower court cases have taken a broader view of the meaning of "traditional contours of copyright protection." Rather than limited to the two "First Amendment safeguards," plaintiffs have argued that "traditional contours" means, well, traditional contours. That if plaintiffs allege a change in the "traditional contours of copyright protection" implicating First Amendment interests, that change should be subject to First Amendment review.

In two of these lower court opinions, one in the Ninth Circuit (Kahle v. Mukasey) and one in a district court in the DC Circuit (Luck's Music v. Ashcroft), the courts have agreed with the government. In one of these lower court opinions, (Golan v. Mukasey), the 10th Circuit agreed with the plaintiffs.

This split was the focus of a cert petition (Petition, Reply, Supplemental Brief) to the Supreme Court in Kahle. The government responded (response) that there was no need for Supreme Court to review Kahle, because the "mistaken" decision by the 10th Circuit would be reversed when the Court of Appeals granted the government's motion to rehear the case en banc.

On Friday, the 10th Circuit denied the government's motion. But on Friday, the Supreme Court accepted the government's recommendation not to recognize the split, by denying cert. Thus, though the reason the government offered for not granting cert turned out to be false, cert has not been granted.

There's no chance the government will allow the 10th Circuit's decision to stand unreviewed. But while the 10th Circuit opinion is fantastically well done, it is unfortunate, in my view, that the Court did not take the opportunity to resolve the split in the context of Kahle. The issues in that case are clearer; they provide a better context within which to review the meaning of the Eldred rule -- indeed, they make the wisdom of the Eldred rule seem obvious.

Senator Clinton was given a great opportunity Sunday to explain what she means by "change." In an exchange on Meet the Press, she was asked about President Clinton's pardon of Marc Rich. Remember, Rich was the very rich man charged with tax evasion. Rather than fight the charge in court, he fled the jurisdiction. Not all his money fled, however, or at least lots came back -- in contributions to the Democratic Party, for example. Hours before leaving office, President Bill Clinton pardoned him.

Here was the exchange:

MR. RUSSERT: You say you've been deeply involved in the eight years of the Clinton administration. One of the powers given to a president is the power of pardon. At the end of the president's second term, he granted 140 pardons, including one to Marc Rich, someone who had been convicted of tax evasion, fraud and making illegal oil deals with Iran. Were you involved in that pardon?

SEN. CLINTON: No. I didn't know anything about that.

MR. RUSSERT: No one talked to you whatsoever?

SEN. CLINTON: No. No. Unh-unh.

MR. RUSSERT: His ex-wife gave $109,000 to your campaign.

SEN. CLINTON: Well, no one talked to me about it, Tim.

MR. RUSSERT: Nobody?

SEN. CLINTON: Nobody.

Later, Senator Clinton committed to following Justice Department "guidelines on pardons."

So this is a fantastic area to focus on in defining how Washington would "change" under the new Clinton rather than the old. Indeed, as her husband's administration was charged with essentially selling nights in the Lincoln Bedroom, and with this, selling pardons, it would have been a perfect opportunity for her to make clear just how different things would be.

In this question, she could have done that quite directly.

First, she could have taken the tough, though possibly right, path of speaking the truth despite how it is perceived. Certainly President Clinton thought there nothing wrong with the pardon. And indeed, when the Prime Minister of a major ally asks the President to pardon someone, especially one who has given so much money to one's political allies, one could well argue that it takes real courage to actually grant the pardon, given the totally predictable charge that the pardon was bought.

Second, she could have taken the responsive, change signaling path of acknowledging a mistake and indicating how she would do it differently. Giving large donors special access and privilege in an administration is exactly the kind of behavior many say should change. Senator Clinton could easily have marked this as one of the things that would change.

She did neither. Instead, she deflected responsibility, pointed to the Internet, and promised to follow "guidelines."

Not surprising. But not signaling, imho, "change."

I guess it's a good thing to see that Democracts can learn something about how to run (and hence, win) campaigns. It's a bad thing when what they learn is Swiftboating. Maybe it was Kerry's endorsement that cued the Clinton camp into the idea, but it is the other extraordinary thing about the Meet the Press. Here's the quote:

And let me address the point that Bill was making. Because, again, I think it's been unfairly and inaccurately characterized. What he was talking about was very directly about the story of Senator Obama's campaign, being premised on a speech he gave in 2002. And that was to his credit. He gave a speech opposing the war in Iraq. He gave a very impassioned speech against it and consistently said that he was against the war, he would vote against the funding for the war. By 2003, that speech was off his Web site. By 2004, he was saying that he didn't really disagree with the way George Bush was conducting the war. And by 2005, '6 and '7, he was voting for $300 billion in funding for the war. The story of his campaign is really the story of that speech and his opposition to Iraq. I think it is fair to ask questions about, "Well, what did you do after the speech was over?" And when he became a senator, he didn't go to the floor of the Senate to condemn the war in Iraq for 18 months. He didn't introduce legislation against the war in Iraq. He voted against timelines and deadlines initially.

So the "Swiftboat" strategy here is to take a quality that is a strength of your opponent, and turn it into a weakness. Kerry was a Vietnam war hero compared to President Bush, but the strategy of the Republicans was to completely neutralize that comparison, by raising ridiculous questions about his service. They knew that few would stop to notice the obvious fact: whatever questions you had about his service, at least he served.

And so too does the Clinton campaign now think: Swiftboat the anti-war issue, and people will forget that it was Obama alone among the leading candidates in this race who opposed the war from the start.

Here's the point to keep in view: Whatever your view about whether the war was right or wrong, how you vote after we entered the war is a different question from whether the war should have been waged in the first place. Ask Howard Dean, the last consistent opponent to the war. He didn't plan to cut funding to the troops, and pull out immediately. That's because, once the mistake was made, we had to deal with the mistake. So the fact Obama didn't vote to cut funding, or said he agreed with the way Bush was waging the war, is not "inconsistency." It is a different answer to a different question.

Don't belittle the credit one deserves for doing what Obama did in 2002. Whether or not he was contemplating running for President, no doubt he understood that opposing the war hysteria of the time would weaken his chances politically. That's the same understanding Clinton, Edwards, and every Republican had. But of the leading candidates, only Obama served us, by opposing an unjust war.

And regarding the "facts" in the attack: (1) Obama's first website in his candidacy for the Senate stated his opposition to the war. (2) The "2002 speech" referred to was a speech at an anti-war rally in Chicago. I don't know what Clinton could mean by saying it was "off his website." As you can see here, the "website" of a State Senator doesn't seem to have a place for speeches. The U.S. Senate campaign site, launched in 2002, does have a copy of the speech in the "news" section. That format continued for a time into 2003, but changed in 2003. But throughout 2003, Obama continued to promote the fact that "was the only Illinois senate candidate to publicly oppose President Bush's plan to pre-emptively attack Iraq." (3) Nothing in the original speech or in anything I've seen from that time indicates to me Obama promised to vote to cut off spending in Iraq. Instead, his promises then seem just as sensible now. This is from his website, December 2003:

Now that our troops are in Iraq, Obama will work toward ending deception that has shrouded our policies and forging international coalitions to share the burden of rebuilding. Obama will push for a full investigation of the intelligence provided to the Administration regarding the existence of Weapons of Mass Destruction and Iraqi efforts to obtain nuclear materials. He will also fight the cronyism and secret bidding that has resulted in billions of dollars in contracts going to large corporations close to the Administration. Obama will strive to restore truth and transparency to our policy in Iraq.

So essentially every important charge in the Clinton Swiftboating here is false. Aka, "swiftboating."

(I find now that Dick Durbin made the same charge against the Clintons. Smart guy, that Dubin).

I've seen lots of references to Obama's October, 2002 speech at an anti-war rally in Chicago. I've not seen copies of the speech. Using Brewster's Wayback machine, I was able to find a copy of the speech on Obama's 2002 site. It is as follows:

Obama: I'm not against wars but

COLUMN FOR THE HYDE PARK HERALD FOR WEDNESDAY, OCTOBER 30, 2002
by Senator Barack Obama, D-13

The following is a speech that I gave at a recent rally regarding the situation in Iraq. The rally was downtown at Federal Plaza and several Hyde Parkers attended:

Good afternoon. Let begin by saying that although this has been billed as an anti-war rally, I stand before you as someone who is not opposed to war in all circumstances.

The Civil War was one of the bloodiest in history, and yet it was only through the crucible of the sword, the sacrifice of multitudes, that we could begin to perfect this union, and drive the scourge of slavery from our soil.

I don’t oppose all wars.

My grandfather signed up for a war the day after Pearl Harbor was bombed, fought in Patton's army. He saw the dead and dying across the fields of Europe; he heard the stories of fellow troops who first entered Auschwitz and Treblinka. He fought in the name of a larger freedom, part of that arsenal of democracy that triumphed over evil, and he did not fight in vain.

I don’t oppose all wars.

After September 11th, after witnessing the carnage and destruction, the dust and the tears, I supported this Administrations pledge to hunt down and root out those who would slaughter innocents in the name of intolerance, and I would willingly take up arms myself to prevent such tragedy from happening again.

I don’t oppose all wars.

And I know that in this crowd today, there is no shortage of patriots, or of patriotism.

What I am opposed to is a dumb war. What I am opposed to is a rash war. What I am opposed to is the cynical attempt by Richard Perles and Paul Wolfowitz and other arm-chair, weekend warriors in this Administration to shove their own ideological agendas down our throats, irrespective of the costs in lives lost and in hardships borne.

What I am opposed to is the attempt by political hacks like Karl Roves to distract us from a rise in the uninsured, a rise in the poverty rate, a drop in the median income to distract us from corporate scandals and a stock market that has just gone thru the worst month since the Great Depression.

That’s what Im opposed to. A dumb war. A rash war. A war based not on reason but on passion, not on principle but on politics.

Now let me be clear: I suffer no illusions about Saddam Hussein. He is a brutal man. A ruthless man. A man who butchers his own people to secure his own power. He has repeatedly defied UN resolutions, thwarted UN inspection teams, developed chemical and biological weapons, and coveted nuclear capacity. He’s a bad guy. The world, and the Iraqi people, would be better off without him.

But I also know that Saddam poses no imminent and direct threat to the United States, or to his neighbors, that the Iraqi economy is in shambles, that the Iraqi military a fraction of its former strength, and that in concert with the international community he can be contained until, in the way of all petty dictators, he falls away into the dustbin of history.

I know that even a successful war against Iraq will require a US occupation of undetermined length, at undetermined cost, with undetermined consequences.

I know that an invasion of Iraq without a clear rationale and without strong international support will only fan the flames of the middle east, and encourage the worst, rather than best, impulses of the Arab world, and strengthen the recruitment arm of Al Queda.

I am not opposed to all wars. I’m opposed to dumb wars.

So for those of us who seek a more just and secure world for our children, let us send a clear message to the president today.

You want a fight, President Bush? Let’s finish the fight with Bin Laden and Al Queda, thru effective, coordinated intelligence, and a shutting down of the financial networks that support terrorism, and a homeland security program that involves more than color-coded warnings.

You want a fight, President Bush? Let’s fight to make sure that the UN inspectors can do their work, and that we vigorously enforce a non-proliferation treaty, and that former enemies and current allies like Russia safeguard and ultimately eliminate their stores of nuclear material, and that nations like Pakistan and India never use the terrible weapons in already in their possession, and that the arms merchants in our own country stop feeding the countless wars that rage across the globe.

You want a fight, President Bush? Let’s fight to make sure our so-called allies in the Middle East, the Saudis and the Egyptians, stop oppressing their own people, and suppressing dissent, and tolerating corruption and inequality, and mismanaging their economies so that their youth grow up without education, without prospects, without hope, the ready recruits of terrorist cells.

You want a fight, President Bush? Let’s fight to wean ourselves off Middle East oil, through an energy policy that doesn't simply serve the interests of Exxon and Mobil.

Those are the battles that we need to fight. Those are the battles that we willingly join. The battles against ignorance and intolerance. Corruption and greed. Poverty and despair.

The consequences of war are dire, the sacrifices immeasurable. We may have occasion in our lifetime to once again rise up in defense of our freedom, and pay the wages of war. But we ought not we will not travel down that hellish path blindly. Nor should we allow those who would march off and pay the ultimate sacrifice, who would prove the full measure of devotion with their blood, to make such an awful sacrifice in vain.

After a productive and valuable conversation with my publisher, Random House, they've agreed to permit The Future of Ideas to be licensed under a Creative Commons Attribution-Noncommercial license. You can download the book for free here, or above.

This means all four of my books are now CC licensed. Code (v1) was licensed under a BY-SA license; so too, Code (v2). And Free Culture and now The Future of Ideas are licensed under BY-NC licenses.

I am particularly glad that The Future of Ideas is now freely licensed. That book hit the stores 2 weeks after September 11. I'm glad it now has a chance to flow a bit more freely.

Thanks to Random House (and Basic Books, and Penguin) for being open to this experiment. I hope we'll have some useful data to report about its effect.

Watching the debate last night, I wondered what happens when we become as bad as they. (WE=Dems; THEY=Karl Rove GOP). For there was a cheapness and dishonesty in the exchange last night that I haven't quite recognized before. Why I hadn't registered this before is an obvious question -- for of course, cheapness and dishonesty in presidential politics has been with us for a long time. But I recognized something about it last night I hadn't recognized before.

Let's start with the disappointment: Debates are not Obama's forte. If he were running for Prime Minister, I'd have second thoughts. I can't understand why he isn't better prepared for the obvious exchange that was going to happen. It took way too long to get to (w/r/t the Reagan absurdity): "I obviously don't agree with his ideas and never said I did, and indeed, I worked against them." It took way too long to get to (w/r/t the "present vote" issue): "In the US Senate, voting present would be bad Senatoring. In the Illinois Senate, it is how the system works. My 180 votes out of 4000 is just the same as ...." And w/r/t health care, he never got to "my plan IS universal because it is made available, in an affordable way, to everyone. I just don't believe in fining poor people. I believe in helping them." Again and again, the echo of Obama's message was "it's legitimate for us to disagree about ..." What good is that line doing -- especially given the completely illegitimate charges raised against him by HRC? Someone has go sit him down and force him to spit back 10 second responses to these questions. It isn't rocket science. It is practice and training.

But disappointment is one thing; (this word sounds too harsh, I know, but) disgust is something else. For there was a basic lack of integrity in the Clinton show last night. As a former friend of Clinton put it to me last night, "I now understand just why people hated the Clintons so."

For example: The absurdity about the Reagan comments (and slowly the press is coming around to the recognizing the absurdity in the comments, at least if you believe the Obama survey of the sources).

First, when I heard about this, it struck me as a perfect example of the generation gap that is this campaign. The ridiculousness of people who think they need to continue to attack Ronald Reagan is simply a reflection of a different generation. For anyone under 50, it is obvious Reagan is a towering figure. And for people over 50 who would reflect upon the matter for a second, it should be obvious that Reagan transformed how politics and government is considered. Reagan's was obviously a transformational presidency, in exactly the ways Clinton's was not. Those of us who worked to elect Clinton hoped he would be the Dem's Reagan. But it wasn't a month into his administration when he signaled as clearly as he could that transformation based on principle was not his game (remember selling out the gays in the military issue? Reagan would never have done the equivalent).

So Obama said the obvious (that Reagan's administration was transformational). And he also said that the GOP pushed a set of ideas in the 1980s that quickly captured many Dems (including, let's not forget, Clinton (see, e.g., welfare reform)). That too was obvious. But just as it's obvious to anyone with integrity that when Time names Putin as "Person of the Year" (or Hitler for that matter), Time is not endorsing the positions of Putin or Hitler, so too is it obvious (to anyone with integrity) that Obama was not endorsing Reaganomics. (Krugman, in my view, has that integrity. But he's just gone off the deep end here. There's no myth about the success of "voodoo economics" (as Bush the First put it) to be debunked). Indeed, as Obama pointed out in the most flashy line of the debate, he was on the streets of Chicago organizing against Reaganomics. His statement about "ideas" was simply identifying the kind of leadership he wanted his presidency to aspire to. That's precisely the leadership I want a president to aspire to too.

Yet HRC repeated the slander that Obama was endorsing or recommending those policies. I understand the political gain from creating that impression in people. But someone who does that in that way betrays a basic lack of integrity.

So too with the extraordinarily cheap shot of saying Obama worked for a "slum lord."

As Hillary Clinton of the Rose Law Firm (remember Whitewater?) certainly knows, even assuming (falsely) that Obama represented this "slum landlord," that one gives a client a defense does not mean one has endorsed the ethics or values of the client. And more certainly, the fact that as an associate at a law firm, one spent 4 hours working on a memo does not signal that one has endorsed the ethics or values of the client. Pt the partner of the client. As the Washington Post Factchecker reports:

William Miceli, Obama's supervisor at the law firm, said the firm represented the Woodlawn Preservation and Investment Corp., a nonprofit group that redeveloped a run-down property on Chicago's South Side with Rezko. He called Clinton's assertion that Obama represented Rezko in a slum landlord business "categorically untrue."

"He was a very junior lawyer at the time, who was given responsibility for basic due diligence, document review," said Miceli, adding that Obama did what he was told by the firm. According to Miceli, that was the only time Obama worked on a Rezko-related project while at the law firm.

But of course the irrelevance of this to Obama or his values is not obvious to people outside of legal practice. That means it was an effective charge politically. Clinton knew the truth. It was a plainly unethical charge for her to make. (Recall Advice and Consent: "Sir, have you no shame?")

But what about Obama's Walmart comment? (In responding to the charge that Obama endorsed Reagan's economic program, Obama said he was organizing in Chicago to fight those programs during a time when HRC was sitting on the board of Walmart).

Obama's reply must have been fun. It certainly got attention. It was in my view unnecessary. But even if unnecessary, it was certainly not unethical. His point was about his commitment to values that Clinton said he didn't have. Showing his "experience" in contrast to hers was fair, and it was true. It created an impression that accorded with the facts, unlike the Reagan comment, or the "slum lord" slander. Thus ethical, in my view, but unwise.

We've heard this about the Clintons from the start: they would do anything. But watching her utter words she knows are false, or words which even if technically true, create a plainly false impression, was, again, disgusting. Just how small is this person now apparently leading the Democrats? Just how small have we become?

Now of course I am totally open to the charge of naivete. But I don't think it just naivete. When you think about all the virtues that Obama plainly has over HRC -- indeed, in some ways, the Reaganesque ability to inspire, set a vision, speak across divides, etc. -- this cheapness feels different. The loss seems greater. Bush was small and deeply unethical when he allowed Karl Rove to destroy McCain in 2000 in South Carolina with totally false rumors. Many Republicans rightly thought the better man had been defeated by that dishonesty. We are soon to be in the same place with our nominee unless some measure of integrity surfaces in this campaign.

Caroline Kennedy, A President Like My Father. Finally hitting the theme that should be everything this campaign is about:

Most of us would prefer to base our voting decision on policy differences. However, the candidates' goals are similar. ... So qualities of leadership, character and judgment play a larger role than usual. ...

And when it comes to judgment, Barack Obama made the right call on the most important issue of our time by opposing the war in Iraq from the beginning....

I have never had a president who inspired me the way people tell me that my father inspired them. But for the first time, I believe I have found the man who could be that president — not just for me, but for a new generation of Americans.

So this Thursday, January 31, at 1:00pm, at Memorial Auditorium on the Stanford Campus (directions) (map), I will be giving my last lecture about "Free Culture." The event is a bit staged (literally), as it is being sponsored by an entity making a film about these issues, and they want the lecture to use in the film. But the venue is beautiful, and I will also use the opportunity to map out one plan for addressing the problem of "corruption" (as I've described it) in politics. I've now finished a draft of the talk; for those who have seen me speak before, it is new (almost completely new -- maybe 1% are must have slides from the past). For those who haven't seen me speak before, it will be a nice map of where this debate has been, and where I think I want to go. Any questions about logistics, send an email here.

Read all about it.