December 16, 2008  ·  Lessig

Fred Benenson’s got a nice piece about the WSJ piece. The most depressing part of this whole cycle was the news that the WSJ was sticking by the story.

On what basis, precisely? The charge that Obama was shifting policy was, and is, completely baseless. The charge that I had “shifted” my position was, and is, completely unsupported (and false). And the charge that Google was violating network neutrality principles has been shown (concisely by David Isenberg, one of the originals in this debate) to be just wrong — no one who understands what “network neutrality” (or what we used to call this before it was smartly marketed, “end-to-end“) is could believe that edge caching services, living in a competitive market, could raise NN concerns.

So they’re sticking by a story that’s baseless, unsupported and wrong. Sounds like we know where the Bushies have gone to work now that they’ve left the White House.

Update: So I’ve just had an email exchange with Christopher Rhodes, one of the authors of the piece. What surprised me most about the piece was that he was such a careful interviewer when we spoke, but that we didn’t really speak about the issue they charged me with — shifting — and I was surprised he didn’t ask or followup on that. Turns out he tried, writing to my assistant, but that I didn’t speak with him. My assistant didn’t know the context of our conversation, so her translation of the question didn’t flag it. My apologies to Rhodes. Had we connected, the story would have been different. The mistake in not connecting was mine, no doubt. And the mistake convinces me that at least with respect to me, the story is a misunderstanding (and not, as suggested, bad faith). Important lesson for me, no doubt. But for others: Please send emails for me to me. I read and respond to every email I get (save the spam-ish sorts). And while I can be behind, if you don’t get a response, I didn’t get it.

December 15, 2008  ·  Lessig

I got off the plane from Boston to find my inbox filled with anger about an article in the Wall Street Journal. To those who were angry, I hope you will direct any anger at the Wall Street Journal after you read what follows.

The article is an indirect effort to gin up a drama about a drama about an alleged shift in Obama’s policies about network neutrality. What’s the evidence for the shift? That Google allegedly is negotiating for faster service on some network pipes. And that “prominent Internet scholars, some of whom have advised President-elect Barack Obama on technology issues, have softened their views on the subject.”

Who are these “Internet scholars”? Me. And of course, because I have “softened” my views about network neutrality, and because I advised the Obama campaign about technology issues during the primary, it follows (and obviously so) that Obama too must be going soft on network neutrality.

I don’t know what Google is doing, though if they are trying to negotiate exclusive deals for privileged access, that shows exactly why we need network neutrality regulation. (Though note, the article doesn’t say the deal Google was striking was exclusive).

And I’ve not seen anything during the Obama campaign or from the transition to indicate it has shifted its view about network neutrality at all.

But I do know something about my own views, and what the Journal has done here is really extraordinary.

It is true, as the Journal reports, that I have stated that network providers should be free to charge different rates for different service — “so long,” the Journal quotes, “as the faster service at a higher price is available to anyone willing to pay it.”

But the whole punch of the story comes from the suggestion that my position is something new. As the Journal states,

Lawrence Lessig, an Internet law professor at Stanford University and an influential proponent of network neutrality, recently shifted gears by saying at a conference that content providers should be able to pay for faster service.

And:

Stanford’s Mr. Lessig, for one, has softened his opposition to variable service tiers.

Missing from the article, however, is the evidence that my view is a “shift” or “soften[ing]” of earlier views. That’s because there isn’t any such evidence. My view is the view I have always had — whether or not it is the view of others in this debate.

For example, in April, 2008, I testified before the Senate Commerce Committee. This is what I said:

As I testified in 2006, in my view that minimal strategy right now marries the basic principles of “Internet Freedom” first outlined by Chairman Michael Powell, and modified more recently by the FCC, to one additional requirement — a ban on discriminatory access tiering. While broadband providers should be free, in my view, to price consumer access to the Internet differently — setting a higher price, for example, for faster or greater access — they should not be free to apply discriminatory surcharges to those who make content or applications available on the Internet. As I testified, in my view, such “access tiering” risks creating a strong incentive among Internet providers to favor some companies over others; that incentive in turn tends to support business models that exploit scarcity rather than abundance. If Google, for example, knew it could buy a kind of access for its video content that iFilm couldn’t, then it could exploit its advantage to create an even greater disadvantage for its competitors; network providers in turn could deliver on that disadvantage only if the non-privileged service was inferior to the privileged service.

That’s the same thing I said to the FCC in its hearing at Stanford. You can hear what I said beginning at minute 18:20 here. There I distinguish between “zero price regulations” (such as Markey’s bill (which I say I am against)) and what I called “zero discriminatory surcharge rules” (which I say I am for). The zero discriminatory surcharge rules are just that — rules against discriminatory surcharges — charging Google something different from what a network charges iFilm. The regulation I call for is a “MFN” requirement — that everyone has the right to the rates of the most favored nation.

This is precisely the position that the Journal breathlessly attributes to me today. It represents no change — no “softening” no “shift” in my views.

Now no doubt my position might be wrong. Some friends in the network neutrality movement as well as some scholars believe it is wrong — that it doesn’t go far enough. But the suggestion that the position is “recent” is baseless. If I’m wrong, I’ve always been wrong.

December 9, 2008  ·  Lessig

These bailouts are an awful idea — the worst of K St. capitalism (== kapitalism) inviting an insanely bad future for the industries affected. If there’s one thing worse than Detroit managed by the managers who have been driving the American auto industry into the ground for the past three decades, it is Detroit managed by politicians.

I’m not against all bailouts. I think it was appropriate to save the airline industry after 9/11, for example: That was an unexpected shock that produced a failure not directly related to the bad management of the airlines.

But these bailouts are not that. Both the auto industry and the banking industry are insanely inefficient. They have been for decades. And rather than being saved from a shock, both need a significant shock to management to radically change how they do business.

Perhaps the shock to banking would be too great just now. I’m willing to be persuaded that intervention is necessary there. But the more I read about the auto industry, the less I am convinced.

People speak about this as if not bailing out Detroit means automobile production in America ends. That’s not what failing to bailout Detroit means. Not intervening now would mean these automakers would enter bankruptcy. And bankruptcy means the assets of these dinosaurs get reorganized: Someone else buys these companies, at a price the market sets, and runs them profitably, because of the price the market set.

Obviously, that change would not be painless. And I’m all for minimizing the pain where the pain is doing no good — with workers, or others depending upon these industries. But I’m against interventions designed to minimize the pain where the pain would do good — by radically changing how that industry is managed. The whole justification for insanely high executive compensation is, in part, so they can weather such storms. I don’t see why the government should be in the business of building safety nets for the (relatively) well off.

“But what if foreign car companies buy American car companies?”

So what. I just don’t get this fear. We live in a global economy. If you want to own Toyota, buy Toyota stock. In the vast majority of cases (meaning there are exceptions I’d be willing to consider), the place of incorporation of a company should mean squat little to these sorts of issues. Or better, the ability of the company to build and manage production should matter much more.

December 3, 2008  ·  Lessig


This story is absurd. The message here is that Governor Rendell somehow screwed up because he said something not intended for broadcast near an open mic. But wait a minute: Who did the wrong here? It is plain from the context that Rendell did not intend his comments for public consumption. Yet intentionally or not, ever-more-invasive technologies captured what he said. So why isn’t the outrageous behavior here broadcasting what he plainly intended to be a private conversation, rather than, as this commentator makes it seem, the fact that he was having a private conversation at the mic?

Or again: To be sure, Rendell would be wise to remember that there are a million privacy invading technologies surrounding us, and that he, like a citizen in the former Soviet Republic, needs to make sure that whatever he says isn’t been snooped. But whether Rendell was wise or not (and I certainly have criticized him for not being wise), why isn’t the outrageous behavior taking what he plainly didn’t intend to be public and broadcasting it on a world-wide network?

Just because you can see, doesn’t mean you should look. And just because you looked, doesn’t mean you should broadcast what you saw to the whole world. I know a little titillation is good for ratings; I hadn’t known CNN had begun to stoop to such lows.

November 26, 2008  ·  Lessig

Chris’ post says:

For Obama media to be offered under a CC license (with the licensed embedded in the media itself) would signal his seriousness about embracing openness, transparency and the nature of discourse on the web. It would also signify a shift towards the type of collaboration typified by Web 2.0 social sites, enabling a modern dialectic relationship between the citizenry and its government.

Note the “seriousness” of Obama’s commitment here might well be wondered about. Note the tag line on “change.gov“: “CONTENT COPYRIGHT © 2008. ALL RIGHTS RESERVED.” Talk about “change” — an effectively governmental website claiming “all rights reserved.”

November 5, 2008  ·  Lessig

This is a democracy. We win when we persuade people of our ideals. I believe strongly that Proposition 8 is against our ideals. I have so argued. But we have failed to convince the other members of this democracy.

We need to try again. Let us launch, now, a new petition movement. Let us spend a year talking to people who disagree with us. Let us win this battle by persuading the other side. I volunteer to do whatever would help, including traveling to every church or community in this state to make the case for equality. But please, let’s not try to win this battle by summoning the Supremes. Even if it is right that this Amendment is contrary to the best interpretation of Equal Protection, let us bring the ideals of Equal Protection to life, by getting people to support them.

October 29, 2008  ·  Lessig

Proposition 8 is the CA initiative to amend the CA constitution to ban same-sex marriage. This is far from my usual field, but it is an issue I feel strongly about. Click for 8 minutes of a diversion on 8.

October 1, 2008  ·  Lessig

I’m in Brazil, just finished with a lecture, about to get on a plane back to the states. When I arrived last night, my inbox was full with a bunch of emails about an anti-Obama remix video that had been taken down from YouTube for copyright-related reasons by an pseudonymous user on YouTube named TheMouthPiece. I tried to follow the links to get to see it, but couldn’t. Finally, I was able to locate it, and make it available here for the purpose of demonstrating just what’s so wrong with the law of fair use and why it has got to change. (I’m forced to host this myself because of course no video site will not carry it, and I don’t want to further complicate the .torrent debates.)

First, and obviously, for anyone who has followed my work, I don’t support the substance of the video. It makes some interesting and important points about the problems leading up to this crisis. But I think the suggestion about Obama at the end is incorrect.

But second, and obviously again for anyone who has followed my work, the fact that this video was suppressed is ridiculous. (I don’t credit the suggestion it was suppressed for political reasons, though of course, the suppression lawyers don’t consult me, so I wouldn’t know.)

That it was suppressed, however, is a feature/bug of current copyright law. The video is making a powerful (if wrong, imho) argument about the source of responsibility for this financial mess. It uses text (sparsely placed, as is my own style too, though the author needs a better font), images of newspaper articles, pictures of the candidates, and clips from television, all to the end of making the political argument.

That part’s relatively easy from a fair use perspective. What isn’t is the music. As is increasingly the style for amateur (in the good sense of the word — people who do what they do for the love of what they do and not for the money) remix: music is attached to parts of the video to give it a special boost in social meaning, or significance. The cultural reference enhances the political. It becomes part of the story.

So, for example. when describing how Fannie and Freddie gave low interest and no interest loans, the music is Dire Straits “Money for Nothing.” And when talking about the speculation, Talking Head’s “Burning down the house.” When talking about the influence of money inside the campaigns, AcDc “Money Talks.” And when talking about how “it ends now” if (as the author but not this author hopes) Obama is defeated, the music is “Survivor – Eye of the Tiger.” In each case, the music amplifies the message in powerfully and socially relevant way.

[BUT NOTE: important disclaimer -- I am completely ignorant about the culture stuff, and have struggled to identify the music using lyric search engines. I have created a special page on my wiki which identifies all the songs I could identify, tagged to the seconds on the video. I have not had the time to verify this, or ask others to correct it. Please help by watching the video, and correcting any errors you see, and by filling out the description of the link between the lyrics and the message of the video]

So is this “fair use”? Well most of us would hope it is, but there’s no clear authority to support that idea. Music is historically (meaning over the past 20 years) extremely tightly regulated. We have no clear or good “fair use in music cases” except when the music is being used to criticize or comment upon the author whose music was being used. So, the Campbell case in the Supreme Court involved a parody of Roy Orbison’s song. That, the Court held, was fair use.

But in these amateur remix cases, the music isn’t being used to comment upon the copyright holders — ACDC isn’t being used, for example, to criticize them. And for this category of use, there is, again, no clear authority supporting a claim of fair use — which the record companies interpret to mean it is clearly not fair use.

Maybe it is. Maybe it isn’t. But this whole mess demonstrates clearly, in my view, the need for us to get beyond the “fair use” analysis. This is an amateur remix of popular culture. It should be completely exempt from copyright restrictions. When it gets used commercially (by, say, YouTube), then, in my view, YouTube should be responsible for the work it is profiting from — through a flat, collective license, for example, either created by law, or negotiated by the parties. But only then should there be a “copyright event.” Until it is used commercially in that sense, the creator should be free to (re)create without employing a lawyer to muddle through the mess of complexity fair use law is. The law has no useful function in this context. Or put differently, amateur remix needs to be deregulated.

Instead, of course, the law today has it exactly backwards. It is the creator of this work who is the alleged copyright infringer under current law. And YouTube who is immune from liability so long as it removes the work as soon as it can.

This has got to change. We should be regulating in copyright where it makes copyright-sense to regulate. And in my view, it makes no copyright-sense to be regulating this kind of use. Sure, Tom Petty wouldn’t be happy with his work being associated with a conservative message. But so what. When your song is famous enough to provide this sort of support in a message like this, you’ve lost control of its meaning. And no doubt, you’ve been well compensated for that as well.

Let’s hope this bit of copyright over-regulation might begin to wake the Right up to the need for a significant bit of deregulation in the field of federal culture policy (aka, copyright law).