Lessig

So as the cruel master of fate would have it, on the day that the Eldred case officially ended, I was at Disney World. I was tricked into going to Disney World. I thought the conference was "in Orlando." But Orlando has apparently morphed into Disney World, and so when yesterday the Court refused a request to rehear the case (totally expected), I learned the news while drinking coffee from a Mickey mug.

With that decision, a self-imposed silence about these things ends too. I accepted this silence after a respectful but strong rebuke by a friend. He objected that it was wrong for me to suggest that "the silent five" were acting without principle. I disagree. I do believe their decision lacked principle, but I also see that it was right to complain about the context within which I was making that charge.

So we filed a petition to rehear the case that made the claim of principle in as careful and balanced a way as possible. Again, such petitions are never granted any more. But if there is a place to express such criticism, respectful of the institution and tradition that these justices serve, it was in this form, without the pressure of publicity.

This stage is now over. I apologize for the silence. More hopeful stuff soon.

Orin Kerr is a careful and powerful critic (in the good sense of that term) of much in the law of cyberspace. He has posted a careful and powerful criticism of my post yesterday. So too have others. But the line I agree with most strongly in Orin's post is: "the public domain will be best served if Eldred is treated as a launching point for legislative reform, not an example of judicial foul play."

Agreed. And as I'm the least qualified person to comment on the matter (as I'm the most biased person who has a view on the matter), my efforts are devoted to the future, not this past. My claim was not "foul play" or, as others have said, "corruption." It was instead the sort of criticism that one can only make of an institution one respects: consistency. The obligations of consistency about principle across cases extend at least to those justices who believe in the principle. They don't extend to justices who have dissented from the principle. Thus the burden or justifying and distinguishing Lopez falls on those who signed the Lopez/Morrison opinions. The other four (three of whom wrote the opinions in this case) are not, in my view, bound by that principle to say anything.

The point is not that a distinction couldn't be drawn. The point is that they didn't draw it. And the point is not that the Court must respond to every argument an advocate makes. But when two federal judges frame their dissent on the basis of a principle that also frames the petition upon which cert was granted, a certain decency would suggest something more than silence.

But I leave it to others to resolve the ethics of judicial principle as they apply to this case. There is lots of work to do that will matter much more.

So I received a copy of the March 31 issue of Forbes with a note from the editor in chief: "You might be interested in one of the editorials on page 28." On page 27-28, Steve Forbes endorses the idea of the Eldred Act. More good news about progress on that front soon, but I am proud to count Mr. Forbes as someone who gets it. Now if we could only find an equivalently prominent Democrat.

There's a new piece by Eli Noam posted (for free for 2 weeks) at the FT about spectrum policy. This follows the brilliant and much discussed piece by David Weinberger on Salon explaining David Reed's views about "interference."

Noam has been in the middle of the debate between the spectrum-as-property types and the spectrum-as-commons types for a long time. As his piece concludes, "spectrum should be free to access but not free of charge." The reason is an assumption that is at the core of his and the spectrum-as-property school of thought: "Eventually, any resource whose utili[z]ation is of value, yet whose use is without a charge, will be over-utili[z]ed."

The more I hear these property and quasi-property types talk, the more I believe that this is the core assumption that needs to be attacked. There are two possible lines of attack, both, in my view, true, but only one which is useful.

CIO Insight posted a piece by me about spectrum yesterday, and it was quickly slashdotted. But they posted a side-bar, not the piece. The actual piece is now up. The piece they posted tries to explain how to understand a "wireless commons."

I saw John Edwards speak yesterday at a small party thrown by a friend. He was extraordinary. It was just a simple stump speech -- a bit long, and a bit rambling. But it was moving in a way I have never before seen in a politician.

We are in the process of versioning the CreativeCommons licenses, so check out the discussion and please participate.

Tim Wu has a nice paper about "network neutrality." The basic idea is familiar: the original end-to-end internet is increasingly under threat as network providers develop technologies to discriminate among network users. For many years, this fear of discrimination led many to support "open access" campaigns — requiring providers to permit competitors to use their lines. Competition would, the argument went, weaken the incentives for certain forms of discrimination.
"Open access" has worked extremely well in Japan (where you can get 100 mbs for $50 a month), but it didn’t work well here. Tim’s proposal is for a different form of regulation aimed at neutrality. I recommend it strongly, and would be eager to see any feedback.

I had dinner last night with an extraordinary group of computer scientists. As always in such contexts, the discussion moved quickly to patents. I've been a skeptic about software and business method patents for a long time (while a supporter of, e.g., drug patents), but what always strikes me in these contexts is how violently opposed people in the industry are to software and business method patents while the legal system remains oblivious.

I had thought there was some hope in the new administration. An article by LA Times reporter David Streitfeld quoted the new Patent Commissioner, James Rogan, saying smart and skeptical things about the patent system. I wrote a piece for the FT based in part on that interview, only to have his office call me to tell me that I had gotten it wrong. The "crisis" that Commissioner Rogan sees is not the "crappy patents" (their words) issued by the patent office; the crisis, I was told, is that the office is not issuing patents fast enough.

But the more frustrating response to my article was the follow-up by Professor Epstein. He called my "indictment" "harsh." As he says, "to my knowledge" there is "no fundamental signs of breakdown." He points to "OS X by Apple" as evidence that "strong intellectual property rights [have not] Balkani[z]ed the intellectual universe." "One looks," Epstein writes, "for fundamental flaws in the underlying institutions only when the progress starts to grind to a halt."

My initial (and uncharitable) response to reading this was that Professor Epstein was not looking very far. But after dinner last night, I recognized that there is a fundamental gap in understanding. Most lawyers and policy makers do not understand what technologists believe; most technologists don't understand that (at least some) lawyers believe that what technologists believe about the system should matter.

So here's an idea. I'd like to construct a page of views of technologists who have experience with the system. The aim will not be to evaluate the system as a whole, but instead to collect credible testimony about the burdens the system imposes. Policy makers should be evaluating whether the benefits outweigh the burdens. My aim is not to do that weighing. My aim is simply to collect stories and evidence about the burdens.

If you have experience and a view, then email me and describe both. I will collect them and verify the source, and then make the results available here. The aim is not to conduct a poll; this will not be a representative sample of anything. But it would help immensely to have a place where people could go to read what technologists say to me all the time.

Update: Karl-Friedrich Lenz has sent a link to a great list of patents. This is important and useful, but I'm eager to hear stories of how the system affects ordinary software development.

So this is the best I've seen so far: The Talbott Hotel in Chicago has free wireless in the rooms and public areas. No registration at all. The signal strength is at the maximum; the connect time was exactly 5 seconds.

Competition is amazingly great way to get great infrastructure built. Someone ought to tell the FCC.

Donna "Copyfight" Wentworth is blogging Harvard Berkman Center's iLaw program here in Brazil. The Berkman Center does this every six months or so, at least once a year in a very interesting place -- and this will qualify as the most amazing place for many years. Yesterday, John Perry Barlow and Brazil's Minister of Culture, Gilberto Gil, debated the economics of culture. Barlow is in great form, and Gil is an extraordinary speaker. Most extraordinary was to hear him quote Jefferson and Barlow in Portuguese.

So we're trying to focus on Internet Law, but the truth is, it is impossible to be here, as an American, without the war raining down everywhere. Barlow sits next to me browsing war webpages. Student's won't stop asking. And I, ever wanting to believe, remain stumped.

Then there are minor wars: I've been asked not to praise MIT in the way I did. The reality of this world: one can do good, but others can't talk about it.

Jon Zittrain of Harvard Law School has been doing some good work developing useful and interesting courseware, which the Berkman Center offers for free. If you're interested in helping provide feedback, check out his post to cyberprof.

The Mexican Congress is about to consider a revision to its copyright law. Among it many changes, the law will extend the term of copyright from life-plus-70 to life-plus-100. (And no doubt thus beginning yet another cycle of "harmonization" around the world.) Worse, at the end of the copyright term, the government has the right to charge royalties for works in the "public domain."

This is apparently something new for government regulators. Usually governments nationalize first, and then (and as a result) kill the industry nationalized. Mexico plans to innovate on this pattern: kill the public domain first, and then nationalize after.

The insanity in this system is astonishing. But here's the message Mexico has got to understand: it will be easier for Mexicans to consume Hollywood content over the next 150 years than it will be for Mexicans to cultivate and preserve their own culture. Is promoting Hollywood really what the Mexican Congress is for?

David Sifry has built many great things at Technorati. As Joi notes, his new breakingnews is fantastic -- and not just because it is made free under a Creative Commons license.

As most no doubt know, Dave has brought weblogs to Harvard's Berkman Center, which is extraordinarily great news. Today the Harvard weblog adopted the Creative Commons technology for expressing just how free their weblog content is. More great news. Martin Schwimmer, trademark and ICANN maven, is struggling with the same issues—though he chose words to say what the CC license says with code. And now, I learn, he will use CC licenses as well.

Alas, weaning the lawyers from their words proves harder than the programmers. Maybe the generation of lawyers that Dave influences will be different.

Ed Felten has a wonderful piece about the idiocy in the mini-DMCA's being considered by a number of state "governments." What is so frustrating about this business is not the people (like these governments) who disagree with you. But that their disagreement reveals that they have not done anything to understand the issue. We are over 5 years into this battle, yet these laws look like they have been drafted by people who have lived on another planet these past 5 years.

Thanks to Sean McGrath for sending me this wonderful story about the first copyright wars. The story is told in Ingenious Ireland by Mary Mulvihill, about the 3000 men who died in the "Battle of the Book at Cooldrumman" after copyists refused to return the copies after a court ruled against them. Perspective perhaps, but precedent too?

Today is a key deadline in this absurd system for raising money to run for president. There are a lot of great Democrats out there (so far, only one Republican so we don't need adjectives). If you're eager to see this become an interesting race, contribute something by today. Here are some useful links:

Edwards
Dean
Others

UPDATE: Apparently, this plug put Edwards over the top. Wow.