Lessig

This just in from Gary Murphy. Now we just need some tunes, and then we'll have a movement...

From: Gary Murphy
Subject: I had a little agent

In his OSCON address free culture defender Lawrence Lessig laments that he'd like to write a song to help his cause, but he can't ---

I Had A Little Agent
------------------------
(words by Gary Murphy)

I had a little agent, my agent pleased me.
I fed my agent from the Greenback Tree.
And my little agent did diddily-squat
did diddily did diddily did diddily-squat

I had some musicians, my musicians pleased me.
I fed my musicians from the Greenback Tree.
And my musicians went "like, when'll we get paid man?"
And my little agent did diddily-squat
did diddily did diddily did diddily-squat

I signed up with SOCAN (or BMI or ASCAP or whatever)
and SOCAN signed me,
I fed my SOCAN from the Greenback Tree
And my little SOCAN said [ whining ] "we got so much /overhead/!"
And my musicians went "like, when'll we get paid man?"
And my little agent did diddily-squat
did diddily did diddily did diddily-squat

I got a little venue, my venue pleased me
I paid for my venue from the Greenback Tree.
And my little venue went [ with authority ] "you're too friggin loud"
And my little SOCAN said [ whining ] "we got so much overhead!"
And my musicians went "like, when'll we get paid man?"
And my little agent did diddily-squat
did diddily did diddily did diddily-squat

I found a producer my producer pleased me
I fed my producer from the Greenback Tree
And my little producer said "do you think you could make it more
peppy, and it doesn't always rhyme, and some of your lines are way too long"
And my little venue went [ with authority ] "you're too friggin loud"
And my little SOCAN said [ whining ] "we got so much overhead!"
And my musicians went "like, when'll we get paid man?"
And my little agent did diddily-squat
did diddily did diddily did diddily-squat

I signed with a label and my label pleased me
I fed my label from the Greenback Tree
And my little label said "you're just not moving the units!"
(alt "there's just no interest in that sort of thing anymore")
And my little producer said "do you think you could make it more
peppy, and it doesn't rhyme and some of your lines are way too long"
And my little venue went [ with authority ] "you're too friggin loud"
And my little SOCAN said [ whining ] "we got so much overhead!"
And my musicians went "like, when'll we get paid man?"
And my little agent did diddily-squat
did diddily did diddily did diddily-squat

I cut a little CD and the CD pleased me
I paid for my CD from the Greenback Tree
And my little CD went --- [ dead stop silence ]
And my little label said "you're just not moving the units!"
(alt "there's just no interest in that sort of thing anymore")
And my little producer said "do you think you could make it more
peppy, and it doesn't rhyme and some of your lines are way too long"
And my little venue went [ with authority ] "you're too friggin loud"
And my little SOCAN said [ whining ] "we got so much overhead!"
And my musicians went "like, when'll we get paid man?"
And my little agent did diddily-squat
did diddily did diddily did diddily-squat

I got a little website, my website pleased me
I paid for my website from the Greenback Tree
And our little website goes "MORE M-P-THREES!!!"
And our little CD went --- [ dead stop silence ]
And my little label said "you're just not moving the units!"
(alt "there's just no interest in that sort of thing anymore")
And my little producer said "do you think you could make it more
peppy, and it doesn't rhyme and some of your lines are way too long"
And my little venue went [ with authority ] "you're too friggin loud"
And my little SOCAN said [ whining ] "we got so much overhead!"
And my musicians went "like, when'll we get paid man?"
And my little agent did diddily-squat
did diddily did diddily did diddily-squat

I got me some fans and my fans please me
I fed my fans with Oggs and M-P-threes
And my beautiful fans [ slow to angelic crecendo ] send greenbacks to me ----

[ take a deep breath ]

Now I got greenbacks, my greenbacks please me
I keep my greenbacks in the Greenback tree
and all my greenbacks say "my - fans - like - me"
[ whistle, presumably to the bank ]
And our little website goes "MORE M-P-THREES!!!" (and Oggs!)
And our little CD went --- [ dead stop silence ]
And my little label said "you're just not moving the units!"
(alt "there's just no interest in that sort of thing anymore")
And my little producer said "do you think you could make it more
peppy, and it doesn't rhyme and some of your lines are way too long"
And my little venue went [ with authority ] "you're too friggin loud"
And my little SOCAN said [ whining ] "we got so much overhead!"
And my musicians went "like, when'll we get paid man?"
And my little agent did diddily-squat ... [ big finish ]
DID diddily DID diddily DID DID-dily ... squat

(Thanks, Gary. And especially for this: He writes "Being of sound body and as sound a mind as ever, I hearby release this song (the lyrics anyway) to the Public Domain as requested by the Creative Commons. Remember if you like, but I won't die if you don't."

So out of the muck, Sheila has pushed the idea of picking two candidates, one D and on R, to defeat in the fall. She nicely suggests an organization to start. She also describes Coble's (R, NC) libertarain opponent, supported by Dave Winer, Tara Grubb. Man, that would be a coup. Just the sort of thing they would say the geeks could never do.

Doc's got a nice email from Timothy Phillips (who has been a key contributor to the Eldred case from the start) pushing my hero Hank Perritt, and opposing Mary "Sonny thought copyright should be forever" Bono. These too would be great. But keeping political balance here is important -- knocking one D and one R (and best, with an L) is key.

RMS wrote with kind words about the substance of my OSCON talk, but with fair criticism about its form. Flash!, for all its magic, is not "free" in the relevant sense. Can't I, RMS asks, put this up in a free form? He volunteered to OGG the MP3 file. But is there someone who has played with the emerging free video tools enough to be able to convert the mix of text and images into a free form? I'd love to tinker with it, but there are mice to be freed.

Dave bravely (given the excitement about Mitch's latest contribution) defend's Don Park's concern that the Open Source Applications Foundation will fuel an "erosion in the sense of value for software." That is an important and valid concern, but it needs to be kept in context.

An email this morning from John Patterson of MetManiac reporting that he met with Met management and they have reached an agreement to allow MetManiac to return. Mr. Volpe of the Met is responsible for this sanity apparently. It is a nice practice to thank people for their sanity. Insanity reported here.

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.

We've posted a page on the Emily Somma Peter Pan case with a FAQ about the case. There's a link at the end of the FAQ with a suggestion for more questions. I'd be grateful for any suggestions, about new questions or old.

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.

An Australian sent me this interesting rant about "deregulation" of the media:

You might like to bring your readers' attention to the state of the
media in Australia.

Our government has already gone down the path of creeping
"deregulation". Brisbane, the city I live in, now has only one daily
newspaper - Murdoch's "Courier-Mail". Interestingly enough Queensland
Newspapers (which is The Courier-Mail and some regional weekly
advertising newspapers) is the company Murdoch plundered during some of
his cash-flow problems a number of years ago. He was never called to
account by any regulatory body to answer for the fact that QNP employee
pension money that went missing for many months.

Once media concentration is allowed to creep past a certain point you
are in trouble. The media owners can push for more concentration due to
the fact that they control public opinion via TV and print media.

They got their present media concentration allowances by promising
politicians "more balanced reporting in the future". Everyone knew they
abused the power they had, but the politicians sold the general public
on the belief they could safely trade MORE power for promises of reduced
abuse! Crazy.

Rupert Murdoch and Kerry Packer are a media duopoly with very close
business ties that ensure that casino, cable-TV, digital spectrum and
broadband operation licenses all go to them. Competitors are removed or
regulated out of the market by politicians who have pressure applied
from the press - owned by these two astute businessmen.

Now that they own a great percentage of media they can, and do, use this
to finish off their quality competitors with their inferior but
ubiquitous newspapers, radio stations and TV stations. Kerry Packer's
"ninemsn.com.au" partnership with Microsoft ensures that the country's
PCs roll out with ninemsn.com.au as the default page in their web
browser, thus extending Packer's reach. Murdich and Packer now own the
rights to all major football codes in Australia, plus cricket and
tennis.

It is a nightmare. Newsworthy events either have to advertise with the
duopoly or risk only negative publicity. If it bleeds, it leads. Be it
red ink or red blood. Financial disaster or human tragedy are your only
hope of making the papers unless you pay or are owned by Packer, Murdoch
or Fairfax in which case your miracle arthritis cure gets front-page
space.

If you want to show people what will happen with "deregulation" study
the Australian experience.

There is growing criticism of the June 2 planned announcement at the FCC. MoveOn.org has joined the fight, as has BoingBoing, ReinRadar, and Aaron.

This is a brilliant cartoon by Toles which captures this whole debate best.

Nothing can compete with a good cartoon, but if there were a great op-ed about the dangers of concentration, this would be at the top of the list.

David Weinberger has been contributing small and important pieces to our collective cluetrain of thought (ok, that was too cute, sorry). He's got it right here.

Of all the lines that Dr. Pangloss pesters me with (and you know who you are), the one that gets me the most goes something like this: "But there's an internet now. Why do you worry about media concentration when there's an internet?"

So there's a million reasons why this is silly -- despite the importance of blogs, etc. But the one that's most relevant is this:

At the same time that media concentration restrictions are being removed, such that 3 companies will own everything, so too are neutrality restrictions for the network being eliminated, so that those same three companies -- who will also control broadband access -- are totally free to architect broadband however they wish. "The Internet" that is to be the savior is a dying breed. The end-to-end architecture that gave us its power will. in effect, be inverted. And so the games networks play to benefit their own will bleed to this space too.

And then Dr. Pangloss says, "but what about spectrum. Won't unlicensed spectrum guarantee our freedom?" And it is true: Here at least there was some hope from this FCC. But the latest from DC is that a tiny chunk of new unlicensed spectrum will be released. And then after that, no more. Spectrum too will be sold -- to the same companies, no doubt.

So then, Dr. Pangloss: When the content layer, the logical layer, and the physical layer are all effectively owned by a handful of companies, free of any requirements of neutrality or openness, what will you ask then?

Tom Barger has a nice story about changing his mind. If ideology didn't govern in DC, perhaps it would do some good.

So the Register has a piece about my post yesterday, attacking Dr. Pangloss and his predictions that the Internet will save us all from the dangers of media concentration. Midway through, Andrew Orlowski writes, "'The Internet is dying,' he writes." Actually, that's not quite what I wrote, the quotes not withstanding. What I wrote was: "'The Internet' that is to be the savior is a dying breed." That is, the "end-to-end Internet," where the edge holds the intelligence, is a dying breed. Something called "the Internet" will be with us forever, so in that sense, "the Internet" will never die. But the end-to-end internet (the only internet that really matters to any important issue) is a more fragile beast.

Doc is writing about a meme we have got to get right early on.

One (not the only) general way to describe what's important about the Net we knew is competition. The end-to-end Internet is a platform for fostering and supporting competition.

One general kind of competition that this platform will enable is competition between commercial and noncommercial content and innovation. A richer public domain, and more in the creative commons will mean more to choose among when creating or sharing or criticizing culture.

Competitors hate competition. They will always work to increase barriers to entry. And they will use a string of silly excuses to increase the barriers to the free.

We should resist these excuses. We should be fighting to preserve this competition. "How can you compete with free?" Jack Valenti asks, again and again? By making stuff better, again and again.

But the important point is this: It is wrong wrong wrong to bias the rules against the free. Free societies make closed societies harder to sustain. The same should be true of culture. If you find it hard to be closed and important, then either accept irrelevance or accept the Internet.

Memo to the few:

Two important items for today.

(1) This Internet is getting out of control. I just learned that when you search on news in Google, for example, it actually returns results with the work of people, not Incs. This has got to be stopped. Get Google to change its code. Incs. before people. Always.

(2) Research shows that the best way to resist the increasing public criticism of Mikey's plan to relax rules on media ownership is to focus on the internet. Why worry about 3 companies controlling all of media when we have the internet as a competitor?

(BTW: ever notice?: Mikey + (c) = Mickey)

Glenn has a great column on the "internet will save us" meme. The final paragraph captures it perfectly:

So, Michael, here's the deal: if you think that concentration in Old Media is okay because New Media will provide the discipline, then stand up for freeing the New Media from the shackles that the Old Media are trying to weld on. Because if you're not serious about freeing the New Media, then you're not serious about competition, and what you're describing isn't a bold new world, but a sellout.

Exactly right.

Mikael Pawlo, among the world's, and certainly Sweden's, most active lawyers monitoring of all things cyber, wrote a terrifying story about the law regulating the net last year. Seems a newspaper ran an online forum where readers could post. A reader posted speech that was deemed "hate speech." The newspaper was held liable -- not because it failed to remove the speech quickly enough. The newspaper was liable the moment the speech was posted. Thus, the message from the Swedish courts: Do not create fora where people get to speak unless an editor reads their speech first. The story is here.

And they say the Internet will check "big media" ...

Dan Gillmor has picked up the MediaCon story -- thankfully. His eJournal has begun collecting stories about the obvious effect of concentrated media: that the news will begin to sing in harmony with the interests of the owners. Here's a snippet from Salon on this. And here's his announcement of a mediacon channel.

I don't know who owns the SJ Merc, but whoever does, I guess Gillmor is at least some evidence against my concern that big media will compromise journalism. Some.

Howard Dean says at least two important and true things here: (1) "The way to deal with a leader is to be another leader, and to be strong in your views and present the American people with a choice"; (2) "For me, when the Cumulus Corporation, which owns a lot of radio stations, kicked the Dixie Chicks off their networks – a couple hundred radio stations – I realized that media corporations have too much power."

While I have no idea what this paragraph means,"[w]e opponents of megamergers and cross-ownership are afflicted with what sociologists call "pluralistic ignorance." Libertarians pop off from what we assume to be the fringes of the left and right wings, but do not yet realize that we outnumber the exponents of the new collectivist efficiency," I declare that the war of ideas in this media concentration battle is over. This brilliant piece by Safire ends it.

Let's now see whether ideas and ideals translate into policy.

Frank Rich has a great piece in the Times today about MediaCon.

" Though liberal and conservative organizations alike, from Common Cause to the National Rifle Association, are protesting this further consolidation of media power, most of the country is oblivious to it. That's partly because the companies that program America's matrix have shut out all but bare-bones coverage of the imminent F.C.C. action, much as the ruling machines in "The Matrix" do not feed their captive humans any truths that might set them free."

There were an extraordinary number of people who took up the Starbucks's challenge. Check out the links here and lots elsewhere on the web.

There were many in the comments to the challenge who suggested there was nothing wrong with Starbucks exercising control over its own property. Of course that is right. And of course it is right that Starbucks should have the right to control people who are bothering people with their cameras, just as Starbucks has the right to control people who are bothering others with a radio. And of course it is right that Starbucks has the right even to be extremist about it -- banning anyone who clicks even a picture of a friend, invoking mysterious claims about security or trade-secrets.

But if they exercise these rights to an extreme, then of course we have the right to criticize their extremism. We have the right to link their extremism to a growing phascism about photographs. (See the wonderful summary of your rights by Bert Krages.) For it is bizarre that we increasingly live in this world where every movement is captured by a camera, yet increasingly, ordinary people are not permitted to take pictures with cameras. This is yet another part of a growing obsession with control that seems to mark so much of this society. At a minimum, we have a right to take note of this control, and criticize it where we can.

That's just what I wondered about when I read these stories about Starbucks'. I'm a terribly untrendy sort -- I like Starbucks. But I couldn't quite tell whether the extremism of these stories was an exception or a policy. And I guess I was relieved to read, and to find, at least some stores where the manager of a place that loves to imagine itself a public place was actually giving members of the public a freedom to feel like they are in public. I understand of course -- as everyone should -- that this "feeling" is just virtual. It can be withdrawn at anytime.

Dean: ""In my travels around the country, I have discovered that this proposed
deregulation is one of the foremost issues on peoples' minds. I am asked
about it everywhere--in small towns in New Hampshire, and in major cities
across the nation."

Read his letter to Chairman Powell.

Scott Leverenz has built a page to collect the results of the weekend photography exercise at your favorite coffee shop. Check it out here. Thanks, Scott!

According to friends at the wonderful Bumperactive.com, Starbucks says it has no policy about non-media photographs in its stores. Someone should tell the stores...

Turner has a great piece in the Post about the dangers in Michael Powell's June 2 proposal.

From Sarah Lai Stirland's post: A picture of the current concentration.

This is an important week. Monday, the FCC rules on its mediacon rules. Monday could also be the day the Supreme Court decides the Dastar case. But most important of all: Wednesday, the 7th Circuit Court of Appeals hears the Aimster case.

EFF has written an amicus in the case (have you contributed yet?). EFF's core argument is that it is time that a Court of Appeals properly interpret the Sony Betamax case. Of all the Courts of Appeals in the US, this is the best one to hear this issue. (Bias-meter reading: high. I clerked at that court). Let's hope it hears it well.

This has been an issue close to my own heart. The best thing about Sony is that it recognized the harm that legal uncertainty can impose upon innovation. If innovators have to guess how a federal court will balance the effects of its technology upon copyright interests, then there will be less innovation. Thus the genius of its rule was that it said essentially this: if your technology is "capable" of a "substantial noninfringing use," then the question of whether your technology should be permitted is no longer a judicial question. If it is capable of a substanial noninfringing use, then the question of balancing (which is always at the core of copyright) is left up to Congress.

The judges don't get announced in a case in the 7th Circuit before the argument, so we can't know who will hear the case. But if you're anywhere close to Chicago, you should go see the argument. It is said that Aimee Deep will be there. But whether true or not, the freedom of that spirit will at least have a chance in Chicago.

Tomorrow's vote at the FCC is discussed in Dan Gillmor's column. The FCC will liberate the networks to consolidate because the FCC feels pressured by the courts. ("Courts" means the D.C. Circuit Court of Appeals, which sees a pressing First Amendment claim favoring network owners, but no First Amendment claim defending the public domain ("copyrights are categorically immune" from First Amendment scrutiny)). Read Dan's column and wonder: here in this democracy, this universal opposition to the actions of a bureaucracy does what exactly?

The Supreme Court has unanimously decided the Dastar case -- and correctly. The issue was whether a film producer could be held $1.5m liable for using a public domain film without giving credit to the former copyright owner. The decision is being described as a loss for 20th Century Fox. It is more accurately a gain for the public domain.

We have launched a petition to build support for the Public Domain Enhancement Act. That act would require American copyright holders to pay $1 fifty years after a work was published. If they pay the $1, the copyright continues. If they don't, the work passes into the public domain. Historical estimates would suggest 98% of works would pass into the pubilc domain after 50 years. The Act would do a great deal to reclaim a public domain.

This proposal has received a great deal of support. It is now facing some important lobbyists' opposition. We need a public way to begin to demonstrate who the lobbyists don't speak for. This is the first step.

If you are an ally in at least this cause, please sign the petition. Please blog it, please email it, please spam it, please buy billboards about it -- please do whatever you can. And most importantly, please help us explain its importance. There is a chance to do something significant here. But it will take a clearer, simpler voice than mine.

Kevin Kelly writes with the following amazing story:

> Thought you'd enjoy this. I was researching some stuff today and read
> this amazing story in THE INVENTION OF PRINTING IN CHINA, by Thomas
> Carter (1955):
>
> Carter is describing the very first printed book in the world, the
> DIAMOND SUTRA, a intact copy of which was found in a secret cave
> chamber in Kansu China. The book was published on May 11, 868.
> That's, what, some 1100 years ago. Here is the key: the very first
> book ever printed had a public domain notice. Here's what Carter says
> [p. 56]:
>
> The book consists of six sheets of text and one shorter sheet with
> woodcut, all neatly pasted together so as to form one continuous roll
> sixteen feet long... At the end, printed into the text, is the
> statement that the book was "reverently made for universal free
> distribution by Wang Chieh on behalf of his two parents on the 15th
> of the 4th moon of the 9th year of Hsien-t'ung."
>
> Designated Universal Free Distribution from day one.
>
> Wang Chieh would have signed the petition.

I know I said Dastar was decided correctly. I believe it was. But there is a line in the opinion that really gets me -- for it is the only place in the opinion where the Court cites Eldred, and it cites it for a proposition that must be wrong.

Justice Scalia writes, "To hold otherwise would be akin to finding that §43(a) created a species of perpetual patent and copyright, which Congress may not do. See Eldred v. Ashcroft." But this line show why it would have paid for the Court to pay more attention to the originalism in Eldred. For this line betrays a confusion about what "copyright law" was -- at least -- originally. And under an originalist reading of the copyright power, there would be no Copyright Clause problem with Congress requiring attribution for public domain works.

The confusion is the failure to distinguish "copyrights" from "authors rights." As Ray Patterson argued over 30 years ago in "Copyright in Historical Perspective," the framers understood "copy-rights" to be distinct from "auhors rights." Authors rights protect the right to attribution, and to some degree, the right of integrity. These rights are related to the "moral rights" the Europeans speak of. They are fundamentally distinct from the "copy-right" -- which was a right to control the publication of a work.

From an originalist perspective, then, it is true that Congress shouldn't be able to grant a "copyright" -- a right to control the publication of a work -- for a perpetual time. But the right to attribution is not, from that perspective, a "copy-right." And thus if there were another power of Congress that could support that right -- the Commerce Power, for example -- then a requirement of attribution should not run afoul of the copyright power.

Jed Horovitz has produced an extraordinary film about the "culture wars" which may well not be around for long. You can get Willful Infringement on DVD. Many people should. When the lawyers find this, we'll need archives stored in many places. (Note: the web page says I'm in the film, but only for a few seconds. The really great characters are two clowns.)

This is a nicely detailed review of the Aimster argument by a Chicago attorney.

The Creative Commons blog has a great story about Jeff Bezos recommending Cory's first novel (and there's more coming!) Down and Out in the Magic Kingdom. Cory's book is available either for purchase or for download -- for free, under a Creative Commons license.

As reported in Michael Geist's great Internet Law News service:

>CANADA TO SCRAP COPYRIGHT EXTENSIONS ON UNPUBLISHED WORKS
>Decima's Canadian New Media reports that the Canadian
>government plans to drop controversial provisions from a
>bill that would have extended the term of copyright for
>unpublished works by deceased authors. Dubbed the Lucy Maud
>Montgomery Copyright Term Extension Act, members of a
>committee considering the bill noted that they had been
>flooded with calls and emails of people concerned with the
>copyright extension.

Help us flood more members with calls and emails!

Phil Greenspun has a funny (as in sad) story about the market rising because the public domain is being transferred to corporations. The hook is (of course) the Sonny Bono Act (Free Culture!), but then Phil tells this bizarre story about how Disney World has apparently succeeded in getting the airspace above Disney World assigned to it. As Phil writes,

>Ever since the dawn of aviation it has been held that airspace belongs to the
>public and is to be regulated for the benefit of all by the FAA.  This is what, for
>example, prevents the owner of a farm in Missouri from demanding that Delta
>Airlines pay him a tax every time they fly over his farm. 

But there is a relevant pre-history here that is useful to remember. Before "the dawn of aviation," in fact, the law was that the owner of a bit of land owned not just the land, but all the land to center of the earth, and, as Blackstone put it, "to an indefinite extent, upwards." (See pg 18 here).

This, of course, created a problem once the history of aviation was born. For obviously, if I own all the space above my land, then companies like United are just napsterizing my property as they fly above my land.

The Supreme Court finally resolved this matter in 1946. The Causby's, North Carolina farmers, complained because military aircraft were causing their chickens to fly in panic to their death as they smashed into the walls. The Causby's claimed "trespass" and demanded the military stop flying over their land.

The Supreme Court rejected the argument that airplanes trespass. As Justice Douglas wrote for the Court,

>[The] doctrine has no place in the modern world. The air is a public highway,
>as Congress has declared. Were that not true, every transcontinental flight
>would subject the operator to countless trespass suits. Common sense revolts
>at the idea. To recognize such private claims to the airspace would clog these
>highways, seriously interfere with their control and development in the public
>interest, and transfer into private ownership that to which only the public has
> a just claim.

"Common sense revolts at the idea."

Where's a good "common sense revolt[]" when you need it?

The FCC has released its opinions in re the media concentration decision of June 2.

JD Lasica has a nice catch. Apparently, the Boston Globe has copyrighted the Declaration of Independence. But see 17 USC §506(c).

Eric Hughes sent me a great piece about The League of Extraordinary Gentlemen, which will be released this Friday. As he points out, every character in the movie (which the ads call "the most innovative film of the summer," and "when our future is at stake, they will be our last hope") is a character in the public domain. As WALT Disney before (and as Disney, Inc has apparently forgotten now), the creators of this movie have used the public domain to produce creative new work. For those who defend the idea of (effectively) perpetual copyright: Do you think there would be more of these works if there were a gaggle of rights holders to clear permissions with?

Here is Eric's list of characters, with the caveat that this is a work in progress. Send corrections to me.

From Eric:

The movie is based on a wonderful comic by Alan Moore, the best comics author alive. I had read the original a few years ago, but now there's a film out. So I got curious about where Allan Moore got all the extraordinary gentlemen from. Here's the list.

Allan Quatermain: A character from H. Rider Haggard stories, the most famous of which is King Solomon's Mines, 1885. There's an interesting profile at here. King Solomon's Mines was written on a bet that he could write something better than Stevenson's Treasure Island.

Thomas Sawyer: Mark Twain, Tom Sawyer, 1876. Huckleberry Finn came later. Character added for the movie; he's evidently the only American.

Dr. Henry Jekyll / Mr. Edward Hyde: R. L. Stevenson, The Strange Case of Dr. Jekyll and Mr. Hyde, 1886.

Captain Nemo: Jules Verne, 20,000 Leagues under the Sea, 1870.

Rodney Skinner. H. G. Wells, The Invisible Man, 1897. I have been unable to confirm whether this was the character's name in the novel.

Dorian Gray. Oscar Wilde, The Picture of Dorian Gray, 1890.

Mycroft Holmes. Arthur Conan Doyle, The Greek Interpreter, 1892. I'm not sure if this is the first appearance or not.

Mina Murray Harker. Bram Stoker, Dracula, 1897. Jonathan Harker's wife.

UPDATE: Seth helpfully provides the following additional links (and some corrections above)

Comic Book Annotations & Bibliographies

Annotations by Jess Nevins

Kim Scarborough sent this (warning: large mp3) wonderful radio show from the Columbia Workshop in 1937 about characters leaving the "copyright lane" for the "public domain." It is a brilliantly complex and funny tale that reveals an understanding about the value of the public domain that would be hard to recognize today.

Newsweek's Brad Stone has a great piece about LXG.

Free culture.

Jon Gordon has an interesting interview with Senator Coleman about the RIAA lawsuits. The stream is here, but wasn't working last I checked. Here's the mp3.

Public Knowledge, Creative Commons, and The Center for the Public Domain have launched a call for stories about the public domain.

There's an interesting story to be found in the thread here about a recent decision by Grinnell College to shut down a discussion space, Grinnell Plans, which was an important and vibrant community for students, staff, and alumni alike. The site has now moved to a private server, and the conversations continue.

The link above does a nice job in laying out the arguments that led to the removal, and arguments the school made for closing the community. Is Grinnell's decision common?

Jonathan Percy runs a cool site called Green Plastic, which is a fan site for the band, Radiohead. The site hosts, among other things, lyrics from the band. In June, Warner/Chappell Music contacted Percy to ask him to remove the lyrics.

This is of course increasingly common. Lyrics are copyrighted content. Posting lyrics makes a "copy" of them. Therefore, copyright owners who believe more control is better banish lyric sites to darkness.

But this time, the story was a bit different. Percy complied, and took the lyrics down. Fans were upset, and complained to Warner and to the band. Warner Chappell then contacted Percy again, and gave him a free license to post the lyrics. The lyrics have now returned.

Percy thus has permission to spread culture. Good for Warner Chappell.

Tony Auth is a favorite cartoonist of mine. In 1981, he drew a cartoon in response to the 9th Circuit Court of Appeals' decision in the Sony v. Universal case (the Betamax case). In that case, the Court of Appeals had held that the VCR was an infringing technology. Auth's cartoon captured the silliness of this perfectly: In a single frame, there was a VCR and a handgun, and the caption read (something like) "Which of these is illegal in California?"

I'm trying to clear permissions to use this cartoon. The people who handle Auth's rights can't locate the cartoon I'm speaking of. Does anyone have a memory of seeing this somewhere?

The recording industry has been strongly opposed to a statutory or compulsory license for digital music (not the Internet radio kind, but a reasonable kind that would enable the spread of digital content). They object that "the market" should set the rate for music, not a federal statute. (Of course, they have no hesitation appealing to the statutory rate for damages, as opposed to the ordinary market measure for damages, when it comes to a breach, but that's a separate mat