Lessig

a great article about one of the most important reasons that this side will win.

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

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

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

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

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

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

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

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

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

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

So I've been telling this story about the birth of Mickey Mouse for some time now. See, e.g., my OSCON speech. The story goes like this: Walt Disney was a great creator in the tradition of great creativity: his creativity was to rip, mix, and burn popular culture. Even Mickey Mouse, who was born as Steamboat Willie (released in 1928), was a rip, mix, and burn take-off on Buster Keaton's Steamboat Bill (released in 1928).

But I hadn't realized just how true that was until I opened my very cool set of Disney "Treasures"�a special DVD release of the early Black and White Mickey Mouse films that Disney is now selling (comes in a cool tin case, with a serial number pressed into the tin). The DVD is a great collection of the early cartoons, with some "bonus" features including the script for Steamboat Willie. Here's a screen shot of the first page of the script. Notice the direction from Walt: "Orchestra starts playing opening verses of 'Steamboat Bill.'" Try doing a cartoon take-off of one of Disney, Inc.'s latest films with an opening that copies the music, and see how far your Walt Empire gets.

I've been a subscriber to POBOX.COM for many years now. It has solved many email headaches and is a great service that deserves some pro bono praise. So click more for the praise (and obviously, I've got no financial connection (except my annual bill) to this great company at all).

This is a great story of a citizen standing up for his rights against petty fascism. Didn't hurt that he's an amazing and famous comedian. Don't try this without being famous.

In a second, important defeat for the RIAA, and DMCA-defender types, Johansen was acquitted by a Norwegian court. And as the EFF is nicely publicizing, the principles on which this court in Norway decided the case might be familiar to those who remember our own constitutional tradition. As the chief judge said in reading the verdict, "no one could be convicted of breaking into their own property" and "consumers have rights to legally obtained DVD films 'even if the films are played in a different way than the makers had foreseen." The freedom to tinker in Norway is real. So too should it be so here.

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).

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.

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.

The link to link all things important.

Tonight on PBS, there is a film by a friend's father. It was his last film before he died. Charles Guggenheim was one of the greatest documentary film makers of the 20th century. If you get a chance, watch Berga: Soldiers of Another War. To find local listings, click here. And if you get a chance to see it, let Davis, Charles Guggenheim's son, know what you think by emailing him here. (Note: you have to remove the ZIPPOSPAM from the email address).

I'm almost back after a week away (we're moving this week so I'm not really back till the 28th), but I wanted to thank the Governor for visiting. I have read his posts, and the couple by his campaign, and have just begun to go through the comments.

The appearance by Governor Dean here has created lots of excitement, some stir, and a bit of anger. I've been requested by the University to move my blog to a personal server, which is fine and right given FEC regulations. I've been asked by many (and especially supporters of Senator Edwards) whether Dean's appearance means an endorsement.

But that's just what was perfect about how this week happened. The Dean campaign asked for no endorsement. Indeed, they asked for nothing save the right to substitute if the Governor didn't have a chance to post. Rather than the drama of an irrelevant endorsement, this week instead was a chance to expand the places a candidate visits in a campaign for public office. It is better than a house, better than a town hall, better than anything on TV. And imho, more candidates should do it regularly.

I invited Dean in particular because so much of the success of his campaign has come from those who spend time on the Internet, and I suggested that the mix who spent time at my blog had a valuable set of insights that might be useful to understanding the issues that rage on these pages.

But as I've said before, these issues are not the central issues of a presidential campaign (yet, anyway). And necessarily, any attention a presidential campaign gives to these issues will be for the purpose of learning. No one launches a campaign for President in 2004 with the aim to "free culture" or limit the excesses of creative regulation. These issues are important. Every administration will have to address them. But they do not yet define a campaign or its message. (We'll see about 2008.)

So obviously, I would be honored to have other candidates take a week here if they want. But whether it is here or elsewhere, every serious candidate should spend time in just such an open, egalitarian place. Everyone now recognizes that the leading Democratic candidate is the leading candidate in part because of how his message spreads in places like this. They should all find places where they can do the same -- unprotected by handlers, exposed to many with strong and deep knowledge of a subject, and open to fair criticism. Let there be one week on a blog for every five choreographed "town halls", and we'll begin to see something interesting.

Neutrality aside, though, Governor Dean has earned a special respect. Of course there are issues on which I would disagree with anyone. But I have been struck in reading these posts, and the passion they inspired. They revive a feeling I had as a kid -- that ideas could matter, and that there could be people who would make them matter.

They matter here not so much because of the detail of any response, but because of the willingness to carry a message to places like this, and because of the effect these places have on those who spend time in them. If I've learned anything as I've watched places like this, it is that the best strategy is always simply to say what is right and true, trolls notwithstanding.

Our democracy needs more of this. It needs more candidates spending time in places like this. I am therefore grateful to the Governor for taking the lead. We should all be grateful, our personal politics notwithstanding, if more follow.

John has sent me the following response to the comments on the post about his BA experience. I have posted my view here.

From John Gilmore:

It's been interesting reading. I'd like to respond. I suppose the obvious place to start is with Seth Finkelstein's trolls. (Of course he is doing what he accuses me of -- making outrageous statements and then chuckling when people take them seriously).

I flew to London on Virgin Atlantic two days after the BA incident. I am happy to report that I wore the button, and that neither their passengers, cabin stewards, nor pilots were hysterical. I wore the button in London. I crossed the Channel where the crew gave the shorted possible glance at my passport. I wore it yesterday in Paris.

The button is not a joke. It's a serious statement which one may agree or disagree with. The point that people seem to be missing is that a "suspected terrorist" is not the same as a "terrorist". Yet, that's exactly the conflation that has occurred: treat every citizen like a suspect, and every suspect like a terrorist.

In London and Paris the newspapers are taking Guantanamo seriously -- because their own citizens are imprisoned there without trials. The corrupt US government was careful to remove the one US citizen they found -- but the citizens of other sovereign countries, even those of very close war allies, are in prison. Without trial and without lawyers, and with intent to try them in front of judges sworn to take orders from the President. I have no doubt that American citizens, such as myself, would be treated in the same way if the public and the courts would let our fascist leader get away with it.

On the BA flight, in my carry-on bag, I had brought the current issue of Reason magazine, which has a cover story with my picture and the label "Suspected Terrorist". (It didn't even occur to me to censor my reading material on the flight; I must need political retraining. I hadn't read most of the issue, including Declan's piece in it, plus I wanted to show it to Europeans I met on my vacation.) During the British Airways incident I never removed the magazine from my bag, but supposing I had done so, and merely sat in my seat and read it, would that have been grounds to remove me from the flight (button or no button)?

I am not a lawyer (lucky me!) but I do follow legal issues. The carriage of passengers by common carriers is governed by their tariffs, filed with the government. Common carriers are NOT permitted to refuse service to anybody for any reason. In return they are not held liable for the acts of their customers (e.g. transporting dangerous substances, purloined intellectual property, etc). BA's "Conditions of Carriage" are part of their tariffs (other parts include their prices, etc). You will note paragraph 7: they can refuse passage...7) If you have not obeyed the instructions of our ground staff or a member of the crew of the aircraft relating to safety or security. The crew ONLY has the authority to order passengers around when the orders relate to safety or security. An order to cease reading a book would not qualify.

Some people here (including Mr. Troll) think that the minor risk that someone on the plane will have a panic attack after reading a tiny button, makes the button a "safety" issue, as if I had falsely cried "fire" and risked starting a stampede. Such people seem to be holding me responsible for the actions of others. Were I on such a plane, whether or not I was wearing a button, the person I'd ask them to remove is the one having a panic attack, not the one sitting quietly in their seat.

(Similarly, some people hold me responsible for the inconvenience to passengers. As Virgin Atlantic demonstrated, the airline were in complete control of whether or not to inconvenience the passengers.)

Let me also say in my defense that I seldom fly these days, so I am not used to life in a gulag. I had zero expectation that my refusal to doff a button would result in the captain returning the plane to the gate. But even if I did fly often, my response would be the same: to constantly push back against the rules that turn a free people into the slaves of a totalitarian regime. I push back using the rights granted me by the constitutional structure of the country, plus my own intelligence and resources. Way too many of you readers are like the Poles who, under orders from swaggering bullies, built the brick wall around their own ghetto, as shown in the award-winning movie "The Pianist" (which I watched on the Virgin Atlantic flight). The US is currently filling the swaggering bully role at home, in Iraq, and in the rest of the world. (Come out to free countries and ask around, if you disagree.)

Here are some interesting incidents relating to these issues:

• Dr. Bob Rajcoomar gets a settlement and formal apology from TSA -- only after suing with help from ACLU. Dr. Rajcoomar, a U.S. citizen and Lt. Colonel in the United States Army Reserve, is of Indian descent. After an in-flight incident involving an unruly passenger, Air marshals handcuffed Dr. Rajcoomar without explanation and took him into the custody of Philadelphia police. His wife Dorothy, who was also on the flight, was given no information on what had happened to her husband. Because the authorities confiscated Dr. Rajcoomar's cellular phone, she had no way to contact him. After four hours of detention, TSA personnel told him that he had been detained because air marshals on board the flight did not "like the way he looked." The agency's official explanation for Dr. Rajcoomar's treatment is that while on board, Dr. Rajcoomar had been observing the actions of the air marshals "too closely"!

• ACLU sues four airlines over ejecting passengers because of their race. Subsequent news in these lawsuits is that at least three of them have survived the airlines' "motion to dismiss", i.e. the court thinks there is a real injury to these peoples' rights.

• Passenger detained for speaking with journalist about a NASA nuclear rocket project, while waiting for his airplane.
  
• TSA's CAPPS 2 will track every passenger by their date of birth, home address, home phone, and full name -- and stop or search anyone based on secret criteria. The TSA's August 1 announcement makes every airport a "law enforcement checkpoint" which you cannot pass through without having your "papers in order".

• TSA publishes rules demanding ID on passenger boats. (TSA and cruise lines have already been requiring these IDs, but under unpublished regulations. Ditto for Amtrak trains and long-haul bus lines.)
  

Above, Floyd McWilliams posted a perfect example of what's wrong with this debate:

Gilmore is insulted by being labeled a "suspected terrorist." Okay, but then how would an airline figure out that he's a peaceable fellow except by, well, identifying him? Did he expect to be labeled a low security risk because he wasn't swarthy?

No. I expected to be treated as peaceable because I had not breached the peace. I expected to be treated as innocent because I was not guilty of any crime.

I have the pleasure of serving with John Gilmore on EFF's board. While there are many things we disagree about, we share many values, and this one in particular: At a time of terror, we should demand reasonableness of those with authority � even more strongly than in times of peace. I view BA's behavior here to be unreasonable. I don't doubt they have the "right" to do what they did -- such is the nature of law in a time of terror. That's not, in my view, the point. They have the responsibility to behave reasonably in the face of possible threats. Gilmore's behavior was not a threat. If it was a threat, removing the button would not have eliminated the threat. Demanding he remove the button as a condition of flying therefore serves no good end, except the end of showing who's in charge. Reason, not power, should be in charge always, but especially now.

So imagine this: An employee works for a software company. He discovers a problem with the software, tries to warn the company, but it does nothing. He quits, and then sends email to all the customers of the company, informing them of the security problem with the software. The flood of emails brings the email server down for a bit, but that admittedly does not cause significant damage. Nonetheless, the employee is criminally prosecuted for causing an "impairment to the integrity" of a computer system (by revealing its flaws) which resulted in more than $5,000 in damage (because now it was known to be flawed).

The employee is found guilty. He is sentenced and serves (yes, he actually serves) 16 months in a federal prison.

In America, you ask? Well, in fact, yes -- justice in the Central District of California. But it gets better.

On appeal, the employee retains Jennifer Granick, executive director of Stanford's Center for Internet and Society. She argued the obvious point: it can't be "damage" to tell the truth about some company's software -- however ugly that truth might be.

Today the government agreed. In an extraordinary (and extraordinarily rare move) it confessed error. "On futher review," the government wrote, "in light of defendent's arguments on appeal, the government believes it was error to argue that defendant intended an 'impairment' to the integrity of [X's] computer system." The government asked that the conviction be vacated.

"In light of defendant's arguments on appeal."

Indeed, America: Where defendants sometimes get great lawyers, and where governments let justice admit it is wrong.

I am proud, and moved, by both.

The Copyright Office just released its report (pdf) on exemptions from DMCA restrictions. There's good news and bad news. Let's start with the good. The Office granted four exemptions. One of the four was an exemption for censorware. This exemption was argued for strongly by a number of people, but none argued it more effectively than Seth Finkelstein. Based largely on his testimony, "compilations consisting of lists of Internet locations blocked by commercially marketed filtering software applications that are intended to prevent access to domains, websites or portions of websites, but not including lists of Internet locations blocked by software applications that operate exclusively to protect against damage to a computer or computer network or lists of Internet locations blocked by software applications that operate exclusively to prevent receipt of email" are exempt from the DMCA.

I've been an admirer of Seth's work for a long time, and as this shows, with good reason. Thanks, Seth.

It was a great day for Cory. Congratulations.

UUNet's Sidgmore is dead. He was an extraordinary man. "One of the last great, honest businessmen," said eCommerce partner, Paula Jagemann, and one of WorldCom's last great hopes.

I missed that Seth has a blog. He's been right about many things, but I think he's wrong about one thing: blogs are not just for talkers, for talkers have no time for links. The best blogs synthesize, and reflect. Not just news, but a way to triangulate, as Dave describes it. I hope he rethinks.

To those who wander here,
thank you for last year.
It was, for me,
the best of times,
and the worst of times.
But in both,
I have been extraordinarily grateful for the community here.

Over 5,000 comments offered, most generous, even if some not.
Armand even created Lessig Blog buttons (which of course, I could never wear, but they're fun to look at!).

Anyway, thank you.
I wish there were a better way to show gratefulness,
but until we've got some real whuffie to pass around,
thanks is the best I have.

David Richards writes, and evilsite.org says, that Thomas Paine assigned the copyright to "Common Sense" to the Continental Congress. Richards speculates he was the first to do so, and should thus be a model for Creative Commons.

So at first I thought that was right (the model part; I don't know enough about the history part). But here's why I don't think so now: We should distinguish in this debate between altruistic copyright policy, and reasonable copyright policy. I'm all for altruism, and we certainly don't have enough out there. But Creative Commons is not about altruism; it is about reasonableness. CC says balance, not self-less. It is trying to find a way to restate what balance there should be "in the digital world" (how I hate that phrase). Voluntarily, no doubt, but not self-lessly. Self-lessness, and sainthood, like free and open source software, have enough models out there. CC is not yet another.

Joe Trippi has started a blog. He of course gave the world "blogforamerica" which for a while seemed destined to change America. Now he's launched ChangeForAmerica.Com. The revolution simmers.

This story made me homesick. Lewisburg is about 30 miles from where I grew up -- Williamsport. The owner of a theatre there has invited card-carrying Republicans to see Fahrenheit 9/11 for free -- not because he thinks it a great movie ("both a fantastic film and a fantastically flawed film"), but because he thinks it important that people see it. That led the GOP county chairman from a neighboring county to call the owner and congratulate him -- not because he thought the film a great film ("intellectually dishonest as a documentary"), but because he wants to "encourage local Republicans to see the film so they can participate in an informed debate."

If you missed Barack Obama tonight at the Democratic National Convention, you missed one of the greatest speeches of this campaign. Remember. Links to watch, and read.

John Gilmore's battle to force the government to explain the basis upon which it demands that airlines verify an ID before permitting someone on a plane got a small victory last week. The government had asked to file its brief, defending a rule that is itself secret, in secret. The 9th Circuit said no.

Jon Stewart, attacking the theater that is Crossfire. Crooks and Liars points to a stream here. A bittorrent file is here.

from a description in a financial emal:

For those outside New England who can't understand the emotional significance, please indulge me the following tale: Earlier this morning, I went to grab a bagel and coffee at my regular haunt in Framingham, Mass. (western suburb of Boston). As I waited in line, an older man walked up to a woman who was reading The Boston Globe. He asked her if he could see the front page, because all of the newsstands in the area were already sold out. She offered him the entire paper, but he gently said that he just needed to see the cover. She showed it to him and he started to cry. Grown man in the middle of a coffee shop on an October morning. Cynicism has finally taken a holiday.

Senator McCain has become an important force for good in the land of IP extremism. I reported a hold he had placed on H.R. 4077 because of valid concerns about whether the freedoms it granted (to enable parents to filter "smut" from films) would be read to deny fair use in other cases.

The same careful eye has now caught a very elegant trap buried within the Intellectual Property Protection Act of 2004.

That bill adds some "Anti-Counterfeiting Provisions" to regulate counterfeit or illicit "labels." Most thought its target was physical labels. But a careful reading revealed a real ambiguity in the statute, suggesting (as the MPAA believed) it regulated both tangible and intangible labels.

Why is that a problem? Well if the act makes it an offence to distribute unauthorized copies of labels, then there's a very simple way for content owners to hack around fair use: embed a watermark into the content, and then any clip, even if fair use, would also constitute an unauthorized copy of a label. Thus, DMCA-like, what copyright law gives, this labeling law would take away.

Senator McCain is thus floating an amendment, to limit the regulation of "illicit labels" to physical labels only. And he has proposed a savings clause, which states:

Savings Clause.--Nothing in Section 2318 of title 18, United States Code, as amended by this title, shall be construed to restrict defenses or limitations on rights under title 17, United States Code, for a phonorecord, a copy of a computer program, a copy of a motion picture or other audiovisual work, a copy of a literary work, a copy of a pictorial, graphic, or sculptural work, or a work of visual art, that a genuine certificate, licensing document, registration card, or similar labeling component is (1) affixed to, enclosing, or accompanying, or (2) designed to be affixed to, enclose, or accompany.

Very nice work by a very careful Senator. The Justice Department had expressed similar concerns about an earlier version in March. But the Senator has now given those concerns real life.

Dan Gillmor is leaving the SJ Merc to launch a project that continues the best of blogs. Few have the courage to risk so much for this. He has earned praise for the work he has done, and respect for this next step that he is taking.

"I'm just a student, so I don't have a lot of money to blow, but I donated $165 to EFF, Public Knowledge, and Creative Commons."

So writes Michael-Forest Meservy in an email, inspiring the following plea:

I'm extremely honored to serve on the board of five extraordinary organizations: Creative Commons, EFF, Public Knowledge, Public Library of Science, and the Free Software Foundation. If you can follow a student's lead, I'd be grateful. These are five amazing organizations that need your support. Ask yourself this: How much did I give to the monopolists this year? We'd be happy with 1/10th of that.

IBM has announced the pledge of 500 patents to a "patent commons" for "open source" software development. That means people developing software licensed under a license certified by the Open Source Initiative can be assured that IBM will not assert these 500 patents against them -- at least so long as they don't sue IBM or another open source developer for patent related issues. (Steve Lohr's got a piece in the Times.)

This is important news. It further demonstrates IBM's commitment to making free software and open source software development flourish. And it could well inspire others to follow. Ideally there should be a trust that these patents could be contributed into. We'll have to get the commonists to get to work building such a thing.

So I spend most of my life reflecting on how little progress I've made in the stuff I feel most strongly about.

But now, finally, some progress.

Dick Hardt is brilliant. Watch (and copy) the style. Learn tons from the substance. (My pride is tied to the style only).

The New Jersey Assembly has voted 63-5 to enact a law to remove any immunity for negligence in hiring in any case involving sex abuse. Essentially the same bill had been passed by the New Jersey Senate last year. The bill goes to a committee to resolve the small differences. It is expected the Senate will vote tomorrow to concur in the Assembly's action. The bill will then go to Acting Governor Codey for his signature. It is expected he will sign the bill before Christmas.

The Trenton Times has an editorial rightly praising the actions of the Assembly. But my praise goes to the person who, in my view, more than anyone, brought this matter to a decision.

John Hardwicke is the plaintiff in the case I argued (and which remains pending). But beyond his own case, he has devoted everything in the last few years of his life to getting the law fixed. Movements for justice require this sort of person. Change never happens without them. This change would not have happened, in my view, had John not done everything he did.

There are countless children who will never know to thank this man. Thankfully. But here's one father who does.

Update: The Senate has passed the bill, 39-1. It now goes to the Acting Governor.

Wired is holding a town hall discussion at Town Hall, New York, with Al Gore, James Hansen, Laurie David, and Lawrence Bender, moderated by John Hockenberry, Thursday, May 25, from 8-10pm.

You can get tickets here.

Ray Gifford has announced he is stepping down from being President of PFF. There are (unfortunately) too few things I and PFF agree about. But we agree about Ray. He is a man of extraordinary integrity and insight. It is sad to see him go (but for the best of all possible reasons).

Milton Friedman was a hero of mine when I was growing up. I devoured his (non-technical) work as a teen, and watched his "Free to Choose" every time I could (the days before Tivo).

No doubt the highpoint of the Eldred v. Ashcroft case was when I learned Friedman would sign our "Economists' Brief": As it was reported to me, when asked, he responded: "Only if the world 'no brainer' appears in it somewhere." A reasonable man, he signed even though we couldn't fit that word in.

His integrity to principle will be missed.

The 10th Circuit decided our appeal in Golan v. Gonzales today. In a unanimous vote, the Court held that the "traditional contours of copyright protection" described in Eldred as the trigger for First Amendment review extend beyond the two "traditional First Amendment safeguards" mentioned by the Court in that case. It thus remanded the case to the District Court to evaluate section 514 of the Uruguay Round Agreements Act (“URAA”) under the First Amendment, which removed material from the public domain.

This is a very big victory. The government had argued in this case, and in related cases, that the only First Amendment review of a copyright act possible was if Congress changed either fair use or erased the idea/expression dichotomy. We, by contrast, have argued consistently that in addition to those two, Eldred requires First Amendment review when Congress changes the "traditional contours of copyright protection." In Golan, the issue is a statute that removes work from the public domain. In a related case now on cert to the Supreme Court, Kahle v. Gonzales, the issue is Congress's change from an opt-in system of copyright to an opt-out system of copyright. That too, we have argued, is a change in a "traditional contour of copyright protection." Under the 10th Circuit's rule, it should merit 1st Amendment review as well.

I suspect this decision will weigh heavily in the Supreme Court's determination whether to grant review in the Kahle case. It also nicely demonstrates the wisdom in this part of the Eldred decision (don't get me started on the Progress Clause part of the decision...) The rule of Eldred, as interpreted by the 10th Circuit (and by us) is that Congress gets a presumption of First Amendment constitutionality when it legislates consistent with its tradition. But when it changes that tradition, its changes must be scrutinized under the First Amendment. This is an interesting constitutional argument -- echoing some of Justice Scalia's jurisprudence, as we argue in the cert petition. And it also makes a great deal of sense: practices unchanged for 200 years are less likely to raise First Amendment problems (but see ...); but whether or not immunity is justified for them, it is certainly not justified for practices that deviate from Congress' tradition.

The opinion by Judge Henry is well worth the read. The argument was one the best I have seen. All three judges knew the case cold. It is a measure of how good courts can be that they took such care to review this case.

Thanks to everyone on our team that made this possible. First the clients -- Lawrence Golan, the Richard Kapp Estate, S.A. Publishing, Symphony of the Canyons, Ron Hall and John McDonough (all of whom use and build upon material in the public domain; all of whom were negatively affected by Congress's removal of material from the public domain). But also and especially to the gaggle of fantastic lawyers who supported us in the case -- the Denver firm of Wheeler, Trigg, Kennedy, and Stanford CIS lawyers Chris Sprigman, Ed Lee, Jennifer Granick, David Olson, David Levine, Colette Vogel, Elizabeth Rader and Lauren Gelman (Tony Falzone came on afterwards).

The single most important lesson I learned when studying the pathologies of communist nations (my life, 1980-1994) was just how critical NGOs (non-governmental organizations) were: Strong, independent sources of moral authority that could check and criticize powerful governments. I know few see lawyers in that role anymore. I'm not one of that few. In my view, lawyers have a critical role in protecting the rule of law -- not just technically, but ethically, and culturally. It is our job to remind a nation of the ideals that underly a rule of law state.

It was with great pride then that I watched this fantastic talk by the new ABA President, William Neukom. I've had my disagreements with Mr. Neukom in the past. But there's nothing in this talk that I disagree with, and there's everything to praise. Watch especially the Q&A. And especially especially the answer about access to the legal system by the poor.

Cory Doctorow has a great feature in Locus explaining how CC works.

Jack Goldsmith is a friend from law school. We clerked together at the Supreme Court. We have remained friends since. When he went to the Justice Department to head the Office of Legal Counsel (read: the coolest possible job in the world of public lawyers), many of us were anxious. The kind of legal storm that was/is the Bush Administration is not a place one wishes on friends.

The Terror Presidency is the story of Jack's time at OLC. It is a book that makes me very proud -- of the ideals of my profession, and of my friend. You've no doubt heard the sexy bits -- orchestrating the reversal of OLC on the torture memos, the scene at the hospital with Ashcroft, etc. Those alone make the book worth the read. Indeed, the new attorney general said he "couldn't put it down."

But the two parts that grabbed me were these:

(1) The hardest part of this story for those of us who believe in executive oversight (and believe that the Constitution means what it says in Article I, Section 8, Clause 18) is the extraordinary account of the costs of legalizing (as in subjecting to law) much of the work of the CIA and Defense Department. Long after this administration is gone, careful souls will need to understand how to overcome the debilitating costs of this sort of legal uncertainty. The simple answers (repeal the law; expand the regulation) are too simple. But Jack's account interestingly flipped my understanding of the struggle inside the administration. It is hard not to see that the problem was often not a lack of law, or respect for the law, but an over-abundance of law. (We) Liberals, happy to have clear and plain speaking from an inside-conservative, should not be so quick to overlook this critical point of the book.

(2) There is something unavoidably fantastic about watching up close law have its independent effect. Most go into this profession believing in its integrity. Many find it too hard too often to see or feel that integrity. This is a book about that integrity. As anyone close to this subject knows, it is always possible to bend the law to some political end. It takes a kind of courage, or at least, self-respect, to resist that bending. Jack's story here is compelling, not only because he doesn't attribute the bending to illicit motives, but also because it makes clear just how hard it is to feel the ground on which one needs, always, to stand. If our students understood only a fraction of this, it would make enormous difference.

I am proud of this friend.

An important advance in the life of the network happened today. Miro 1.0 was released. Think about the history of computing technology -- from the bottom of the stack up, the movement has been from proprietary to free. The hardware became a commodity, then the OS, then many apps. Miro represents the commodifying the content protocol layer. "It's a platform that benefits everyone by keeping online video open," the website promises. Here's my promise: it signals the movement of those seeking proprietary profits further up the stack. That's always a thing for innovation and growth.

Free resources hero Carl Malamud is responsible for another coup: As announced on the public.resource.org site, he has negotiated a deal to buy a chunk of federal case reports and make them available totally freely -- expressly public domain (using a new CC tool we're releasing in December that makes it clear that there are no rights -- copyright, moral, publicity, etc. -- attached to content). This is a brilliant step to a properly accessible public domain. Bravo to Carl!

So it has been a fantastic week watching my new member of Congress, Jackie Speier, do her work. The first was her strong opposition to local moth spraying. "[T]he USDA has the wrong approach," said Speier. "It's spray and ask questions later, and we can't allow them to do that." Exactly right.

Then she voted against the FISA compromise. (You know my view about that.)

And now she's joined with a GOP-hero of mine, Jeff Flake (R-AZ), to fight earmarks. Speier: "The biggest surprise since I’ve been here have been earmarks,” Speier said. “I didn’t realize how insidious it was and how deep it ran and how accepting so many people are of it.”

Bravo, Congresswoman.

Now that she won't be my Dean, I am free to say the following. And I am inspired to say the following by my sense that there's a misperception among some about exactly why Elena Kagan's appointment is so important.

Everyone knows the Solicitor General is the government's path to the Supreme Court. But some write as if the job is about arguing in the Supreme Court. That's a mistake. No doubt, that's a part, though historically the SG has argued a small percentage of the cases (sometimes as low as 1 or 2 a term).

Much more important is the policymaking function of the office. The SG must decide on the strategy for interacting with the Supreme Court. He or she must decide which issues to push, which to hold back, how to frame the issues, and how best to maintain the (deserved) reputation of the office as a principled expositor of the (administration's view of the) law.

Having known Elena since I began teaching (she and I started together at Chicago), I can say that I can't imagine a better choice for this job. Granted, she is not an oral advocate -- though again, that's not the job, and having seen her teach (always at the very top at Harvard and Chicago), I have no doubt she'll be superb as an oral advocate.

But she knows the administration cold (after years in the Clinton administration, and many more years studying and teaching administrative law), and, more importantly (and extremely rare for an academic), she has an extraordinary ability to productively engage disagreement. That's the real success from her time at Harvard (I used to think it was impossible to be loved as Dean of Harvard; Elena is loved by everyone). She is a straight talking, brilliant strategist and strong negotiator, who holds herself to insanely high standards. People see that and respect that -- one bit to the key of her success.

As one reflects upon the fact that the most entrenched disagreements the Obama administration will face over the next 8 years will be with a conservative Court that doesn't need to be reelected, it is quickly apparent that the role of the SG is going to be critical. On a list of many (if not all) fantastic appointments by Obama, this one is brilliant. Everyone is saying as much, but few, I think, recognize just how brilliant this is.

The amazing folks at the Center for Responsive Politics' opensecrets.org have released (under a Creative Commons license) 200 million records to help the world understand how influence in Washington works. This is enormously good news.

Even better is that today they were nominated for a Webby. Here's where you can vote to thank them in the best possible way.