Lessig

Thanks to Scott Lazerwith and Murry Chapman for sending along this bit of good news: Alan Greenspan has signaled what other smart economists have been saying for a long time: That this race to protectionism in the field of intellectual property is not without cost. As Greenspan said,

"If our objective is to maximize economic growth, are we striking the right balance in our protection of intellectual property rights? Are the protections sufficiently broad to encourage innovation but not so broad as to shut down follow-on innovation?"

This is good news for all things happy and light, for it helps a meme that we should be pressing hard: IP is of course good; but it does not follow that more IP is better.

They say I'm a pessimist about the future of freedom on the net, and they've got two books of mine to prove it. But the report that the RIAA has now filed suit against four students for sharing content over a university network is a moment of hope. If we work hard to report the details and reality of this suit, then the extremism of the RIAA's tactics will finally get through.

Let this extremism finally force recognition of the best response to this problem for now: a compulsory license with a large carve out for non-commercial "sharing." Napster proposed as much in 1998. Had Congress listened, then we would have had just as much sharing over these last 5 years, but artists would have 5 years of income, and fewer of our children would now be felons. Instead, Congress did nothing (except pass the Sonny Bono Act and the DMCA), and 5 years later, artists are no better off, our kids are now "terrorists" (such is the rhetoric of the other side), and the cartel of the RIAA is only stronger.

What politicians need to remember is that Congress has always adjusted the rules by which creators get paid as a response to new technology. That's just what they should be doing today. Never before has the law been used to force new technology into old way of doing business. Every time before this, it was the law that adjusted to assure artists got paid given the new technology.

There are any number of proposals floating about just now for a compulsory license for content [Ed Felten has a nice post on this; my favorites are William Fisher's from Harvard, and Neil Netanel's from Texas] -- a way to free content while assuring that artists get paid. All of them would also have the salutary effect of leaving our courts to deal with real criminals (can anyone spell Enron anymore?), and leaving the internet to do what it does best (making content broadly and efficiently available).

It's time for Congress to turn its attention to constructive ways to assure that artists get paid without destroying the extraordinary freedom of the internet. This has been Congress's role in the past. It needs to get beyond the distortions of a bunch of lobbyists if its to play its proper role in the future.

After my talk at CFP on Friday, some smart soul asked me a question that I answered quite stupidly. He asked whether part of the problem we face cames from a "naive" opposition to regulation. This was an argument I had made before in Code, and I was not eager to engage it again. But the right answer is yes: there is still a need balanced and useful regulation. The one (but only) sense in which Declan is right is that none of the regulation we've seen so far is either balanced or useful.

But that does not mean that balanced and useful regulation wouldn't do some good. As I go through my morning mail (I counted today: 83% of messages received in the past 24 hours is spam), I am reminded of an especially useful set of regulations that Congress should enact immediately to save email from the sludge that buries it. I've bet my job on one solution. But whether that solution or another, this is something Congress should do soon.

So this story continues to amaze me. Pennsylvania has a law that gives the Pennsylvania Attorney General the power to order an ISP serving Pennsylvania citizens (read: any ISP anywhere) to block a site which the Pennsylvania Attorney General says serves child porn. There is no judicial review of the order, and as no ISP is likely to resist the order, the law results in unreviewed censorship of internet content. According to this report, the AG is now refusing to even reveal the list of sites his secret orders have blocked.

There are hard cases in the law of cyberspace, no doubt. But this should be a slamdunk easy case -- if anyone would have the courage to challenge it. CDT is exploring a challenge. Good for them. If the First Amendment means anything, it must mean that the government can't order the censoring of a publication without any judicial review at all. You might want to tell the Pennsylvania AG what you think. Here's a form.

I was one of the "fretters" (as Declan called us) at CFP in New York last week. By "fretters," Declan means people who "lose perspective" on issues like media concentration, and threats to privacy. "Perspective," in turn, means recognizing the "tremendous difference" between actions taken by the government and those taken by private corporations. Who exactly doesn't understand that difference isn't clear from the article; nor is it clear for how long this "tremendous" difference will remain "tremendous," as increasingly corporate databases are essentially the government's (TIA). But no matter: whatever the threat CFP-ers were worried about, there's apparently *still* nothing to worry about (as of course, Declan's had this same line in his copy-buffer since I first met him at CFP97). The free choices of the market will allow everyone to choose any problem away (when we will get around to that happy set of choices, though, is not yet clear.)

Declan did criticize me for invoking "1970s rhetoric" when talking about media concentration. I'm still not quite clear what exactly that means. I was criticizing media concentration, which on any measure, is massively greater today than in any period in our history. In 1992, 70% of prime time television was produced by independent producers; today, 75% is owned by networks. There are 91 "major" TV markets; 80% of them are owned by 6 companies. In 1947, 80% of newspapers were independent; that number is below 20% today. In the 1970s, 10% of first run films in theaters was foreign; that number today is less than .5%.

Add to this concentration (1) the expansion in copyright terms, (2) the expansion in copyright's scope, (3) the expansion in copyright's reach [ie, to anyone with a computer], and (4) the explosion of technologies protected by DMCA-like laws, and you clearly get, imho, something to be concerned about. It *might* be that all this doesn't matter, and no doubt, we should keep this in perspective, Declan. But from what perspective is this a happy story?

Anti-fretters are apparently convinced that everything's just great because now we've got "satellite TV, satellite radio, DVDs, CDs, video-on-demand, hundreds of cable channels, movie rentals and ... the Internet." But of course, no one is saying there are fewer *outlets* for media; the claim is that there are fewer "independent" outlets for media. Six companies, which if the media cap rules are relaxed, could well be three.

Should we be worried about this? As I said to Nick Gillespie (whom I had not met before and who is brilliant), my bias has always been not to be worried. I'm a fan of Judge Posner. He's done lots to slay "big media" myths. And in this contexts, as well as many, big is not necessarily bad.

But the more I hear from people who know something about what the process of creativity is actually like, the more I am concerned. Gillespie says the artists have always been whiners. Maybe. But the "innovator's dilemma" applies to culture as much as to commerce. Yet we have more reason to be worried about its application to culture than to commerce.

Maybe there's nothing to be worried about. Maybe the market will make it all turn out just fine. Maybe this really is the best of all possible worlds. Or maybe this is the one issue which my sparring partner has gotten right. As he testified when arguing against relaxing rules requiring independence in programming, he predicted "[t]hey would assert their fiscal authority in such a way that literally three people would have complete authority over what is seen in homes … a monopoly in television never before comprehended or tolerated in this country. ... No one industry, no single entity, no group of enterprises ought to be allowed, by special grants of congressional privilege, to dominate the marketplace …. The losers in that ungainly arrangement are consumers––always, every time."

Who is this defender of diversity and opponent of concentration? The amazing Mr. Jack Valenti.

Two articles from The Hindu suggest the interesting world we've entered. In the first, India's Union Minister for Civil Aviation says that the doctrine of "pre-emptive war" (relied upon by the United States to justify its war in Iraq) should be used to justify a war against Pakistan to counter its allegged support for "terrorism." In the second article, Pakistan says that there is "ample proof that India possesses biological, chemical and other weapons of mass destruction" and of the "massacre of innocent civilians in Ahmedabad and Kashmir" and therefore is a fit case for "pre-emptive strike."

An interesting mix of Senators has written a strongly worded letter to Chairman Powell about his apparent decision to revise media ownership rules without public hearings. This does seem a curious way to launch profound changes of media policy -- in a democracy at least.

Dave has posted instructions for placing a Creative Commons license in the RSS feed generated from a Manila weblog.

This is great news. We have launched a campaign to build a layer of reasonable copyright law in a world increasingly defined by the extremes. CC tags -- marks expressing freedom beyond fair use -- is an important first step. Web logs have been the most important early adopters. With Movabletype, and now Userland, the most active and vibrant community on the web is beginning to show the rest something between the extremes.

Doc has an interesting post about CC licenses and the public domain. As he rightly notes, we have no direct license that you can link to so as to place your material in the public domain. This is not because we wouldn't like to offer such a license. It is instead because the law does not make such simplicity possible. While for most of our history, there were a thousand ways to move creative material into the public domain, most lawyers today are puzzled about whether there is any way to move work into the public domain.

We have tried to build a way, but it is not automatic. If you follow this link, there are a number of steps you can take to put material into the public domain. We believe that if you follow these steps, then your work is in the public domain. Again, there's no way to be certain about this. But this is our best guess, given the murky state of the law.

Again, this can't be automatic. But you can automatically license your content under an Attribution only license. The only requirement that an Attribution licenses imposes is that a subsequent adopters give credit. This is an important, but slight burden. And because our licenses are perpetual, this is quite close to a public domain dedication.

Doc has a great post pushing public domain dedications of content. But on the way to his valuable recommendation, Doc writes,

"I believe what Userland and the Creative Commons people have made here is, literally, a DRM — digital rights management — system, in the best possible sense of the acronym."

I think it is useful and important to distinguish between DRM and DRE -- digital rights management vs. digital rights expression. DRE is a technology simply (1) to express rights. The "management" in DRM implies a technology -- code -- both (1) to express rights and (2) to enforce it.

But for all of the reasons that the DMCA debate has made clear, there are lots of problems with DRM systems precisely because code is used to enforce copyright rights. Code can never accurately map fair use, it can never reserve a right to criticize the existing expanse of control, etc.

DRE is therefore DRM minus the management. A DRE system simply enables an efficient way for people to say what freedoms they are enabling. In a world where the default is "all rights reserved," CC DRE enables a simple way for people to say "My content is free in the following ways."

That CC freedom is of course in addition to the freedoms guaranteed by "fair use." But "fair use" is not, in our view, enough. The Commons needs a richer range of freedoms than the freedoms guaranteed by "fair use." CC thus enables people voluntarily to increase the freedom around their content.

We believe saying CC-free is an important step for many reasons. But we also think it is importantly different from technologies that would make computers the enforcers of the limits on that freedom. DRE is therefore not DRM.

Finally, one technical point: Our CC licenses expressly state that you can't use our technology with a DRM system that does not adequately protect "fair use." As I've not seen a DRM system that adequately protects "fair use" yet, imho, that means you are not allowed to use a CC licenses with a DRM system yet. At least that is so if you take seriously the commitments the CC license imposes.

Today, Les Vadasz will announce his retirement from Intel, effective June 1. We owe this extraordinary man a great deal.

Vadasz was a founding member of Intel in 1968. He has been a founding member of the small but growing (and exceptionally important) group of IT executives who understand the threat to innovation that this current "war" (the copyright war) presents.

Vadasz became famous to the public when he had the temerity to standup to Senator Hollings' abuse. But his real work has not been in the public's eye. It has been the person to person campaign that he has been waging in the valley, waking these good folks up to policy questions that they wish would just go away.

They won't go away. Nor do I expect that Vadasz will. Instead, his work — from helping to build a company like Intel, to helping to remind Democrats and the world of the importance of free speech and consumer rights to innovation and growth — will remain: as a challenge to us, and an example to others.

Mr. Vadasz, thank you. (Path to email link here).

JD Lasica has a nice pointer to a story about progress in the digital watermarking debate. He wonders about this progress because of work (in part by Ed Felten) suggesting "that all such encryption systems can be defeated." But there is an important distinction that this debate needs. I'm a strong supporter of flawed (in the sense of defeatable) watermarking. Here's why:

Matt's got a wonderful brace of posts (have we determined what the collective noun for web log posts is yet?) Thursday that reports a question and then a story to answer it.

A while ago I reported the wonderfully radical testimony of Jack Valenti against the removal of the FIN-SYN rules. I have not been able to find the testimony online. Here's a large pdf of a scan of the relevant section from the GPO's reports.

Jon Udell's got a nice piece about the emergingly Semantic Blog. One part he missed was the emergence of CC licenses as part of the semantic blog space. Movabletype and Userland now both incorporate CC license options. The technique we've used with html has been questioned, but we are pushing hard to get RDF out there.

What's needed is a killer app, and here's where the powerful need to be responsive. Google in particular has not been receptive to becoming RDF-aware, making it harder to build the amazing Google hack that would enable a search such as "give me all the pictures of the Empire State Building available under a non-commercial license." Perhaps here's where competition between AllTheWeb, or Yahoo and Google may do some good.

Some say the reasons Google remains Semantic-ly-unaware are dark -- that in a world of articulate pages, it is harder to be the dominant search engine. I'm not willing to believe this yet. I suspect instead that it is up to us to spread the semantic word, and then others will find more reason to pay attention to it.

I have just finished reading the opinion by Judge Wilson dismissing MGM's suit against Grokster and Streamcast. The opinion is testimony to great lawyering. The key to the decision is the difference between the architecture of Napster and the architecture of Morpheus. To get a judge to understand that completely takes an extraordinary skill. This was not a case I worked on at all, so I am free to say this: EFF deserves a great deal of credit in this case. As Kapor said at its founding, "Architecture is politics." Now it is also law.

On June 2, the FCC is scheduled to release new rules governing media ownership. The expectation is that the revised rules will remove limits on media concentration. The consequence of that change will be an extraordinary increase concentration, in an already concentrated industry.

These issues are hard. Big is not necessarily bad. Change in media structure is not necessarily corruption of media content. But the more I have read about creators worried about this increase in concentration, the more I have looked at this issue.

Surprisingly or not, the issue of media concentration is not being covered adequately by the media -- that same media that will be affected by the changes in these rules. So that makes this ripe for the media in this space.

I've got a bunch of stories and statistics to report, and will. But this is something we need many many voices to report. Where else will the news not fit to print get printed -- except in weblog space?

One measure of the cost of concentration is the effect that creators say it will have. Here's an extraordinary interview by Bill Moyers with Barry Diller. Favorite line: Moyers' asks, doesn't the explosion in the number of channels mean we have more diversity?

Diller: "No. Because what we have is an absolute fact that five companies control 90 percent of all of it. It has been reconstituted. Instead of it being three channels that were controlled by a few people, there are now 500 controlled by a few people."

One important issue that the change in market structure affects is the independence of creativity. Because of the repeal of network ownership rules, there has been a dramatic change in the ownership of pilot shows on major networks. This graph shows the change. In 1990, the overall percentage was 11.3%. In 2002, that had increased seven-fold -- to 70.2%.

How might this matter? Some of the most important television has been produced by independents. "All in the Family," for example, created by Norman Lear, was created because Lear could say no to network executives who wanted to tame his creation to fit the network image.

The future: fewer Lears likely.

Here's the data for new series:1990 -- 12.5% owned; 2002 -- 77.5%

Some of the best work cataloging the effects of increased concentration has been done by the Future of Music Coalition. In November last year, they produced a great report about radio deregulation. (The punch line: more concentration, less diversity, less opportunity for musicians).

FMC is now part of a group of artists that has sent a letter to Michael Powell about the upcoming decision to further "deregulate" media. Here's a link. More good stuff from people who know.

There's a standard dance that the IP extremists do well: When they lose in Congress, they go overseas and negotiate a treaty that imposes on the US the same obligation they just lost in Congress; then they come back and say, "we must do this to live up to our international obligations."

So here we go again: The US Trade Representative is negotiating trade agreements with Chile and Singapore. The agreements essentially require these two countries to adopt the DMCA, and make it a violation of "our international obligations" if we were to change the DMCA. Representatives Lofgren and Boucher -- who both have bills introduced to amend the DMCA -- have written a strongly worded letter to the USTR asking for clarification. For consistent with this policy making process, just what is being promised is never made clear -- until it is too late. Here's the letter.

Who kindly email to ask whether they can link to my content on my blog: The permissions for my site are expressed in (1) human readable form, (2) lawyer readable form, and (3) machine readable form in the Creative Commons license linked at the bottom of the page. The whole point of this is to enable people to build upon other peoples' work without signing a contract. (Here's a nice flash to make the point.) So please excuse me if in response to your request, all you get is a link back to this post. If you need express permission, then I'm sorry: CC-express is the best I will do, because a world that better expresses freedom is the space we are trying to build.