August 19, 2008  ·  Lessig

A reaction to McCain’s recently announced technology policy. (Stupidly unclear in the video: the initial graph is U.S.’s global ranking in broadband penetration — so starting high (#5) in 2000, and declining to #22 by 2008. The rankings are based on OECD data.)

There’s also a version at YouTube (but please watch in “high quality”).

(I resisted the cheap shot “[sic]” at “and free to chose among broadband service providers.” Will someone please get them to fix this?)

[Update: Here’s a slightly edited transcript of the video (which steals Michael McDaniel’s brilliant title)

June 14, 2008  ·  Lessig

I’ve gotten lots of email and comments about my criticism of privacy-revealing behavior related to Chief Judge Kozinski. After reading that criticism, I am more convinced.

  1. Privacy is not determined by technology: The core point that’s important to me here is to reject the sense many have that “privacy” is that stuff you can’t get access to technically. So something’s private if encrypted, but if there’s a way for me to hack into it, it is public. I reject that sense of the norm of privacy. Think of a party line telephone. Anyone on the party line had a simple ability to pick up the telephone and listen to any conversation going on. But if you did that, others would rightly call you a louse. You had invaded the privacy of the people having a telephone call, even though it was technically trivial to listen to that private conversation.
  2. This FTP server was improperly configured (given its use): Though you could access this (or practically any) FTP site through the web, this was not a web site. It was a file server. Just like the server that contains the files for this blog, that means it enables people to get access to files. But it also enables the maintainer to control who gets access to what files. So with this blog, if you download a file I’ve linked from the blog, you can easily figure out what directory that file is located in. But you can’t (without serious hacking) see the other files in that directory, or see the directory structure. That’s because those friends who have helped me set this up have disabled that ability. Yale Kozinski apparently didn’t with the Kozinski server. So again, as with the party line, it was trivial to see all the files in any particular directory, or the directory structure. But that doesn’t make peddling the list of stuff kept on the server to news organizations not a violation of privacy.
  3. Metaphors are metaphors.: My original metaphor here was about someone jiggering a lock and breaking in. That was a metaphor. As with any metaphor, there are an infinite number of ways the metaphor is like the particular example, and an infinite number of ways it is unlike the particular example. The parts I found analogous were these: like someone breaking in, the litigant went where he wasn’t invited; like someone breaking in, the litigant found stuff in a place anyone could have placed it; like the den where anyone could place stuff, you can’t know who is responsible for whatever is there; like the den in a private house, privacy means not having to defend or explain what is in your den. As I explained in the comments, I didn’t mean the metaphor to suggest the litigant was a criminal for trespassing. As many of you know, I am not a believer in the trespass theory of cyberspace. But just because you’re not a criminal doesn’t mean you’re not a chump.
  4. “Hacker”: I called the litigant a “hacker.” That was the nicest thing I said about him. I do not subscribe to the view that “hacker” predicates only of criminals. RMS is famous for his greeting “Happy hacking.” It means nothing more than someone who explores. But again, that it is a good thing to explore does not mean it is a good thing to wander into someone’s den.
  5. The irrelevance of the MP3s.: Some suggest my view would have been different had I known the judge had MP3s on his site. Those sorts are wrong. Indeed, I did know he had a few MP3s on his site — the first reporter calling me about this told me that. That fact does not change anything in the analysis. As the Fed Circuit has indicated in an unrelated case, an unindexed FTP site is not a “public” site. The fact that you have copyrighted MP3s on a nonprivate site does not make you a copyright infringer. Kozinski was not offering this content to the world. The fact that some Russian MP3 sites found it doesn’t change Kozinski’s responsibility. Obviously while I don’t support the practice of wrongful distribution of copyrighted material, I certainly do believe people have the right to space-shift their material, and even share it with a friend (“Hey, listen to this…”) That’s all that’s happening here.
  6. Your privacy should not depend upon your political party.: This also disappoints me here — the schadenfreude. Here’s a Republican judge getting in trouble for racy content with questionable copyright status. So we (or some of us) liberals get all outraged and angry at his bad behavior. But had the politics been different, would the reaction have been the same? Privacy, in my view, is more important than this. A Republican judge deserves his privacy as much as the rest of us.

I’ll add to this as I think of it. Now I’m late to taking my kid to see Alcatraz.

June 12, 2008  ·  Lessig

So the wires are a twitter with the story of Chief Judge Alex Kozinski’s “web site” which, from reading the stories, you’d think was filled with porn (and worse), revealing a dark soul who, some experts in legal ethics suggest, shouldn’t be presiding at an obscenity trial. That, you think, is what I mean by “the Kozinski mess.”

It’s not. What I mean by “the Kozinski mess” is the total inability of the media — including we, the media, bloggers — to get the basic facts right, and keep the reality in perspective. The real story here is how easily we let such a baseless smear travel – and our need is for a better developed immunity (in the sense of immunity from a virus) from this sort of garbage.

Here are the facts as I’ve been able to tell: For at least a month, a disgruntled litigant, angry at Judge Kozinski (and the Ninth Circuit) has been talking to the media to try to smear Kozinski. Kozinski had sent a link to a file (unrelated to the stuff being reported about) that was stored on a file server maintained by Kozinski’s son, Yale. From that link (and a mistake in how the server was configured), it was possible to determine the directory structure for the server. From that directory structure, it was possible to see likely interesting places to peer. The disgruntled sort did that, and shopped some of what he found to the news sources that are now spreading it.

Cyberspace is weird and obscure to many people. So let’s translate all this a bit: Imagine the Kozinski’s have a den in their house. In the den is a bunch of stuff deposited by anyone in the family — pictures, books, videos, whatever. And imagine the den has a window, with a lock. But imagine finally the lock is badly installed, so anyone with 30 seconds of jiggling could open the window, climb into the den, and see what the judge keeps in his house. Now imagine finally some disgruntled litigant jiggers the lock, climbs into the window, and starts going through the family’s stuff. He finds some stuff that he knows the local puritans won’t like. He takes it, and then starts shopping it around to newspapers and the like: “Hey look,” he says, “look at the sort of stuff the judge keeps in his house.”

I take it anyone would agree that it would outrageous for someone to publish the stuff this disgruntled sort produced. Obviously, within limits: if there were illegal material (child porn, for example), we’d likely ignore the trespass and focus on the crime. But if it is not illegal material, we’d all, I take it, say that the outrage is the trespass, and the idea that anyone would be burdened to defend whatever someone found in one’s house.

Because this is in many ways the essence of privacy. Not the right to commit a crime (though sometimes it has that effect). But the right not to have to defend yourself about stuff you keep private. If the trespasser found a Playboy on the table in the den, the proper response is not to publish an article reporting this fact, and then shift the burden to the home owner to defend the presence of the Playboy (a legal publication, harmless in the eyes of some, scandalous in the eyes of others). The proper response is to give the private party the benefit of privacy: which is, here at least, the right not to have to explain.

This analogy, I submit, fits perfectly the alleged scandal around Kozinski. His son set up a server to make it easy for friends and family to share stuff — family pictures, documents he wanted to share, videos, etc. Nothing alleged to have been on this server violates any law. (There’s some ridiculous claim about “bestiality.” But the video is not bestiality. It lives today on YouTube — a funny (to some) short of a man defecating in a field, and then being chased by a donkey. If there was malicious intent in this video, it was the donkey’s. And in any case, nothing sexual is shown in that video at all.) No one can know who uploaded what, or for whom. The site was not “on the web” in the sense of a site open and inviting anyone to come in. It had a robots.txt file to indicate its contents were not to be indexed. That someone got in is testimony to the fact that security — everywhere — is imperfect. But this was a private file server, like a private room, hacked by a litigant with a vendetta. Decent people — and publications — should say shame on the person violating the privacy here, and not feed the violation by forcing a judge to defend his humor to a nosy world.

When it comes to government invasions of our privacy, we are (and rightly) a privacy obsessed people. We need to extend some of that obsession to the increasingly common violations by private people against other private people. There is nothing for Chief Judge Kozinski to defend because he has violated no law, and we live in a free society (or so he thought when he immigrated from Romania). A free society should feed the right to be left alone, including the right not to have to defend publicly private choices and taste, by learning not to feed the privacy trolls.

November 16, 2007  ·  Lessig

So as readers of this site know, I represent Robert Greenwald (pro bono) in a some fair use matters. My first work was on his film Outfoxed. Robert has been continuing the campaign against Fox. His latest is a very clever set of attacks on the “indecency” of Fox News. (The purpose is to push the FCC to unbundle cable channels). Watch the video below and you’ll see the point.

Ok, so here is where things get weird. All of this content is content broadcast on Fox television. All of it thus passes the censors at the FCC. Yet stories about Robert’s latest are now banned on DIGG. And YouTube requires you verify you’re over 18 to see the clip. (At 9pm, the story is #1 on Reddit, on the other hand.)

So it’s ok to broadcast this content to kids for the purpose of driving ratings and ad revenue, but banned for purposes of criticizing the (yet again) hypocritical Fox network. The conspiracy theories abound here. My guess is that some pro-free speech entities (DIGG, YouTube) are just not thinking.

UPDATE: DIGG did the right thing. Read (and digg) Kevin’s correction of their mistake. Bravo.

October 15, 2007  ·  Lessig

As I think through this issue of corruption, I am brought back again and again to the differences in an institution’s sense that the rules should be followed. For example, the great thing about the Supreme Court — an institution I would criticize on substantive grounds in lots of contexts — is that the culture of the place is that people follow the rules. Perhaps clerks do more of the writing than one would want, but the institution is basically doing what the framers imagined it would be doing. And it does so with everyone in that institution following the rules. Compared, for example, with the FCC, where the staff apparently thinks following the rules is just an option, not a requirement, in my experience at the Court, no clerk would ever have had any contact with a party to a case, or discuss the proceedings of the court during the time it is considering a case. The difference, again, as I argue in Corruption vAlpha, is one of culture.

So then this story about the Texas legislature is just perfect in making the same point. The point is not really about the significance of the act. It is about the culture it reveals. There is a plain rule the prohibits what you will see in this video. The Texas legislature is a culture where the rules apparently don’t matter.

Thanks to Laurie for linking me to this via BlacklistedNews. Also directly related: Elizabeth Williamson’s piece in the Post: Getting Around Rules on Lobbying. Thanks to friends who sent the link to make sure I saw this.

August 29, 2007  ·  Lessig

Film schools are in the business of creating filmmakers — artists with film. Their job is to teach both the skill and the ethic of an artist. The skill in making film; the ethic of creating art.

So what lesson do film schools teach their students about copyright? Unfortunately, in some at least, the most striking lesson is on how best to become an artistic-sharecropper.

That at least seems to be the lesson being taught at the University of Hawai’i's Academy of Creative Media. All film students must sign a copyright agreement that either renders their work “work for hire” or assigns completely all copyright in their creative work to the ACM. (After two years, the student gets a nonexclusive license to the work, but the copyright remains with ACM). ACM becomes the black hole for these rights. What they do with them is not clear.

But what is clear is the lesson ACM is teaching: That you, the creator, deserve no creative- or copy-right for your creativity. That right should be owned by the man. And while (at least so long as you’re good) the man might grant you a nonexclusive license to your creativity, don’t even think about the idea that what you create is yours to control. Copyright at ACM at least is not a right grant to “authors,” it is a right taken from the authors by the University.

Is there anything illegal in this? No. Is there anything immoral in this? Probably not. But I should think that at least some film students will decide where they want to learn how to be film makers by thinking a bit about the values of the school they attend. IMHO, these are precisely the opposite of the values we ought to be teaching creators.

June 8, 2007  ·  Lessig

Engadget reports that “the head honcho of Macmillan Publishers” lifted a couple Google laptops at a recent BookExpo America, and then when he returned them, retorted “hope you enjoyed a taste of your own medicine,” and “there wasn’t a sign by the computers informing him not to steal them.”

So this betrays an astonishing level of ignorance, even for a “head honcho.”

Remember (and I did a 30 minute preso here to explain it) Google Books proposed to scan 18,000,000 books. Of those, 16% were in the public domain, and 9% were in copyright, and in print. That means, 75% of the books Google would scan are out of print but presumptively under copyright.

The publishers and Google already have deals for the 9%. And being in the public domain, no one needs a deal for the 16%. So the only thing the publishers might be complaining about is the 75% which are out of print and presumptively under copyright.

With respect to these, Google intends to index the books, and make them searchable. If a hit comes through the search engine, Google offers snippets of the text relevant to the search. The page includes links to libraries where the book might be borrowed; it includes links to book stores where the book might be purchased. And, I take it, if the “publishers” were to choose to publish the book again, it would also include a link to that publisher.

Finally, any author who wants to be removed from this index can be removed. As with Google on the net, anyone can opt out.

So vis-a-viz a computer sitting at a demonstration booth at a conference, is the “head honcho’s” action like Google’s?

Obviously not. And let us count the ways:

(1) Any such list must begin with the point obvious to all since the beginning of something called “IP,” but set to poetry by Jefferson. Read the full quote at the Connexions project. But the relevant line marking the difference here is this: “Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it.” If the “head honcho” has Google’s computers, Google can’t use them. But if Google indexes out of print books, that does not — in the least — reduce the access anyone else has to the same property.

(2) A computer sitting at a marked booth at a conference is like the 9% in print, and under copyright. With respect to those, Google has deals with the publishers. So the “head honcho’s” action is more like offering in print, in copyright books for free, and in total — something Google is emphatically not doing.

(3) If the computer was not sitting at a market booth, but instead was in a trash dump (like, for example, the publishers out of print book list), or on a field, lost to everyone, then that fits the category of property that Google is dealing with. But again, Google doesn’t take possession of the property in any way that interefers with anyone else taking possession of the property. The publisher, for example, is perfectly free to decide to publish the book again. Instead, in this case, what Google does is more like posting an advertisement — “lost computer, here it is, is it yours?”

(4) Or again, imagine the computer was left after the conference. No easy way to identify who the owner was. No number to call. In that case, what would the “head honcho’s,” or anyone’s rights be? Well depending upon local law, the basic rule is finders keepers, loser weepers. There might be an obligation to advertise. There might be an obligation to turn the property over to some entity that holds it for some period of time. But after that time, the property would go to the “head honcho” — totally free of any obligation to Google. Compare copyright law: where the property can be lost for almost a century, and no one (according to the publishers at least) has any right to do anything with it. Once an orphan, the law of copyright says, you must be an orphan. No one is permitted to even help advertise your status through a technique like search engine.

(5) Or again, imagine the computer was a bank account in New York. And imagine, the bank lost track of the owner of the account. After 5 years, the money is forfeited to the state. Compare copyright: in New York state, a sound recording could be 100 years old, but no one has any freedom with respect to that sound recording unless the copyright owner can be discovered.

The list could go on, but the obvious point is this: Physical property and the intangible property we call copyright are different. Jefferson pointed to one difference. But the really crucial difference that I’ve been trying to get people to see is that physical property systems have a host of techniques to assure that the property system is efficient. Copyright does not. Copyright is the least efficient property system constructed by government — which is saying a lot. And rather than continue sophomoric debates about who is “stealing” what, it’s about time that policymakers — and industry leaders — took responsibility for the inefficiency that copyright is.