June 4, 2007  ·  Lessig

After my debate last week at CISAC (at Google Video here), The Register published a piece (archived) about the event. I’ve received a bunch of angry email about what was reported in that piece. The relevant quotes offered in the Register’s article, however, are not correct.

First, The Register writes that I said: “I have two lives,” he said. “One is in Creative Commons…the other is in litigation against authors.”

In fact, I said: “I have two lives in this. One is leading Creative Commons. And the other [is leading] litigation which is , I’m sure, in conflict with the views of many people about copyright.” Listen to the clip here: mp3, ogg.

Second, The Register also wrote that I said: “No one at Creative Commons has attacked authors.” That’s certainly true. No one working at Creative Commons has ever “attacked authors.” However true, the quote is not what I said.

In fact, I said: “Nobody who works for Creative Commons has ever attacked collecting rights societies in the way you described.” Listen to the clip here: mp3, ogg.

Third, The Register wrote that I said: “I assert that there is no fundamental disagreement between the objectives of the societies and the objectives of Creative Commons.” This caused many from the “movement” to complain that in fact there were important conflicts between Creative Commons and Collecting Rights Societies.

In fact, what I said was: “I assert that there is no fundamental disagreement between the objectives of the Collecting Rights Societies, as you’ve described them and the objectives of what Creative Commons is trying to do.” The qualification is important, because Brett Cottle had described compromises that Collecting Rights Societies were making to fit with the digital age. While I don’t believe it’s accurate that all Collecting Rights Societies have been as progressive as Mr. Cottle suggests, I do believe that if they were, there would be “no fundamental disagreement” between them and our objectives. Listen to the clip here: mp3, ogg.

Fourth, some complained that I had referred to the work of creators who don’t intend their creative work to be licensed commercially as “a secondary class of creators.” Actually, of you read The Register’s piece carefully, you’ll see that the first time that quote is used it states “a second class of creators.” The second time it appears “second” has morphed into “secondary.”

All I meant to do was to distinguish one class of creators — professionals, who create for money — from a second class of creators — those who create for the love of creating, and not for the money. I did not say that these creators were of a second class. Indeed, my whole point was that these creators too deserved “respect.” That point is conveyed quite accurately by the International Herald Tribune piece about the same debate.

Finally, The Register wrote something that has led at least one blogger to believe that I am employed by Google. I don’t think a charitable interpretation of what The Register wrote could support that reading. But to the extent it does, let me state clearly that I am not employed by Google. Nor do I represent them. The suggestion of a conflict in The Register’s piece has, however, led me to craft a disclosure statement that I should have published (ala Dave Weinberger and Ethan Zuckerman and Dana Boyd) long ago. I will post that statement tomorrow.

March 13, 2007  ·  Lessig

Nathan Weinberg has a piece on WebProNews responding to my response to Tom Rubin’s criticism of Google’s “respect” for copyright. The piece is (well written and) useful, because it packs in its couple hundred words all the fallacies that haunt this anti-Google debate.

Fallacy one: “When you make a copy of a copyrighted work, you are in essence stealing it, and even when I download music and movies, I never kid myself that what I am doing is legal.”

First, Nathan, don’t download music and movies without the permission of the copyright owner. Bad, bad, bad.

Second, even if making “a copy of a copyrighted work” is illegal, it is not “in essence stealing it.” See the Supreme Court’s rejection of this false analogy in footnote 33 of Sony v. Universal.

But third, and most important, not every “copy” violates copyright law. In particular, if a copy is “fair use,” then copyright law has not been violated. The question in this case is thus, as always, is the copying for purposes of making snippet access available “fair use.” As much as you know that it is wrong to download music without the permission of the copyright owner, I hope you also know that it is right to make copies — even without the permission of the copyright owner — when such copies are fair use.

Fallacy two: “While there are many authors who care more about getting their books out there than making money, the vast majority is trying to earn a living. Those authors whose books are out of print, but still in copyright, would love an opportunity to make some money off their older books, but Google’s plan involves copying them without permission.”

True, most authors would prefer to make more money from their works than they did before. True, Google plans on copying them (for purposes of making snippet access available) without permission. But the implication — that Google’s copying will reduce author’s opportunity to make money — is false. Out of print books are — by definition — books the authors are not making money on. Google’s Book Search will refer people who discover the out of print book to book sellers. If demand for a currently out of print book grows, then it is more likely than before that the book will go back into print, meaning again, the author can make money. So contrary to the “if Google copies, authors lose” fallacy, if Google enables access, at least some authors will get something they don’t have right now — their out of print book back in print.

Fallacy three: “Even if all the authors want their books in Google, I’ve always felt that to respect me, you have to show respect, and that means asking me if what you are doing is okay. Don’t tell these authors what’s best for them, that shows no respect at all.”

First, both sides in this debate are effectively “tell[ing] these authors what’s best for them.” Microsoft and the Publishers are telling the authors that it is best for them that the law ban companies like Google from securing access to snippets of their works. They want a rule that says “ask first” not for permission to distribute copies of their books, but for permission to enable access through a 21st century card catalog. When in the history of man did the law require permission from an author (or publisher) for a work to be included in a card catalog?

Second, the point ignores the central point in this debate: Given the insanely inefficient system of copyright that the government has created, there’s no way to identify the current owners of these copyrights (for works out of print). So how, again, are these people to be “asked”?

Fallacy four: “Mr. Lessig, even if you want Google to scan and index your book, even if you want the knowledge in your book spread throughout the earth, wouldn’t you want Google, a company that will make money off your book you will never see, to at least ask permission first?”

There are lots of people who make money off of my work without asking me, and it’s a good thing too. Look at the bump in Stephen Manes Google rank from his criticism of me. How much money do you think Forbes got in ads from the click-throughs that this article — calling me an “idiot” and “moron” and other such stuff? Do you think Manes asked me before he tried to profit as he did. (No.) Do you think he should have to ask me? I certainly don’t. If the use is “fair use” — which even Manes article is — then we should encourage people to make money on it. The more money people can make, the more the economy around spreading ideas can grow.

March 7, 2007  ·  Lessig

Tom Rubin is a very smart man. I don’t think I’ve disagreed with any copyright opinion of his, until now. The crucial passage (in my view) from his recent speech before the American Publishers, piling on to Google, was as follows:

Rather than delve into this arcane legal issue, what we really should be asking is whether it would be possible for Google to provide its Book Search service in a way that respects copyright. The answer to this question is: of course there is. How am I so sure? Well, because we at Microsoft are doing it. And not just Microsoft. We and others are working on search-driven projects that are proceeding with the express permission and support of copyright owners. And then there’s Google’s own Publisher Partner program, which makes book content available online only after obtaining the necessary authorization.

Let’s first put this quote in some context.

Google’s “Book Search service” aims to provide access to three kinds of published works: (1) works in the public domain, (2) works in copyright and in print, and (3) works in copyright but no longer in print. As some of you may recall from the presentation I made a while ago, about 16% of books are in category (1); 9% of books are in category (2), and 75% of books are in category (3).

With respect to categories (1) and (2), Google is “respect[ing] copyright” just as “we at Microsoft are doing it.” With respect to category (1), that “respect” means no permission needed. With respect to (2), that means deals with the publishers whose works are made available — deals which give enhanced access over the default “snippet access.”

So that leaves category (3) — the 75% of works presumptively under copyright, but no longer in print. How do you “respect” copyright with respect to those works?

Well, Microsoft “respects” these copyright holders by not providing any access to their works. Google “respects” these copyright holders by providing “snippet access” — just enough to see a sentence or two around the words you’re searching for, and then links to actually get the book (either at a library, or from a book seller).

This may just be my own vanity, but I suspect that more copyright holders of books no longer in print would like Google’s kind of respect over Microsoft’s. But in any case, it is not true to say that Google could have provided “its Book Search service” in the way that “we at Microsoft are doing it.” If asking first is always required, then because of the insanely inefficient system of property that we call copyright — inefficient again because the government has designed it so that there’s no simple way to know who owns what, the very essence of a property system — 75% of books could not be within a digital view of our past.

November 16, 2006  ·  Lessig

A bit ago I wrote (here and here) about a difference between true and fake sharing, pointing out that YouTube, rightful darling of the Internet moment, was a fake sharer. I hadn’t realized then just how seriously they took this limit: Read here as TechCrunch describes the notice and takedown they received for some code that allows you to save a YouTube video to your machine.

You might wonder how it could be a problem to save a YouTube video to your machine, when it isn’t a problem to save a television show to your VCR? Welcome to the terror of the Terms of Service world: Whether or not it is a violation of copyright law (which it isn’t, though the lawyers for YouTube seem to assert to the contrary), the view of many is that “fair use” rights can be promised away just as your first born male son can be promised away (wait, except he can’t).

Anyway, without risking more red-baiting, let me simply opine: For a company that was built upon the unauthorized spread of other peoples’ copyrighted work to threaten legal action against someone simply enabling people to save that work to his machine deserves at least special mention in a book by Alan Dershowitz.

October 20, 2006  ·  Lessig

So in the comments to my post about the piece in the FT, John Earnhardt, an author on Cisco’s (read: the company that will sell the technology to end network neutrality) “High Tech Policy Blog,” complains about “the rhetoric [I] have used.” In his blog post, titled “How can you tell if a lawyer is lying?” (talk about helpful rhetoric), he writes:

In the FT piece he writes: “Network owners now want to…charg(e) companies different rates to get access to a “premium” internet. YouTube, or blip.tv, would have to pay a special fee for their content to flow efficiently to customers. If they do not pay this special fee, their content would be relegated to the “public” internet a slower and less reliable network. The network owners would begin to pick which content (and, in principle, applications) would flow quickly and which would not.” This is sheer fiction and he knows it. The truth of the matter is that YouTube and Google, the companies he holds up at stalwarts of fair play, apple pie, motherhood and whiskers on kittens actually charge companies to get premium placement on their websites. What’s this you say? Those who own a website or service are allowed to charge money to allow an advertiser to get top placement on their website? I’m shocked and appalled and will be submitted an op-ed to the FT stating the same. What is the difference of a service provider (in his terminology, a “network owner”) of charging a service to get premium placement on their “owned” network? They are not degrading the services of others, but enhancing the service of those who choose to pay for the premium placement.

“What is the difference [between] a service provider … charging a service [fee] to get premium placement on their ‘owned’ network?” Really? The difference is all the difference in the world. No one supporting network neutrality would (or should) say that we should fight discrimination at the edge of the network. That’s the whole point: End-to-end (the bedrock upon with the network neutrality argument rests) is all about facilitating lots of discrimination and preference at the edge; the only place discrimination is a problem is within the network. And again, nothing in my argument is about whether people at the edge of the network are “stalwarts of fair play, apple pie, motherhood and whiskers on kittens” (whiskers on kittens?). The point is not about good vs. evil. The point is about what architectures (whether imposed through technology or business models) will lead to the fastest growth in applications and content. No doubt, some architectures will lead to faster growth in profits for some companies (not to name names); but more profits for some is not the same as faster growth for all.

His second strike is even better:

Here’s another anology: We’re in the throes of campaign season here in the ol’ US of A and television and radio ads play a large role in electing or defeating a candidate. Those candidates who have more money can buy more ads on radio and TV. They can buy them during the most popular shows so that the most amount of voters can see them. If the other candidate has no money and cannot afford to place an ad on television or radio I can only assume that Larry Lessig will offer to pay their way in the name of net neutrality. Why? Because, in his mind, the playing field should be equal for all candidates.

So again, no, whether candidates have money or not is not my concern. They are (in the analogy) at the edge of the network. But let me turn the analogy around. Imagine there are only two television stations in a particular democracy. They both begin to “access tier” — charging different rates to different political candidates. So Dems get a rate 1/2 the rate charged to the GOP; or major parties get a rate that is 1/3 the rate charged to Independents. Does that begin to trouble you?

Now again, as I said in the blog post about the piece, everything here hangs upon market power. So in a truly competitive market for last mile broadband, I wouldn’t care as much (Barbara van Schewick says there’s still a reason to care). But in a world of limited competition, the games the networks can play will both stifle innovation at the edge, and reduce the incentive network owners have to increase performance for all.

October 16, 2006  ·  Lessig

TechWorld (a UK publication) has an article about a “leaked” letter from the Initiative for Software Choice (ISC) (apparently MSFT funded) about, as the article puts it, the “potentially dire effects if too much encouragement was given to open source software development.”

Nothing weird there. What is weird is, first, that such a letter has to be “leaked” (aren’t submissions to the EC a matter of public record?), and, second, the way in which the letter is made available on the TechWorld website. TechWorld gives you a link to the letter. The link states: “You can view the entire letter here.” And indeed, the link means what it says. You can ONLY view the letter. The PDF is locked so that it can’t be printed.

Is it really the case that copyright law would forbid a letter written to a government agency from being printed on a users computer?

Note, this is a simple restriction to get around (but is that legal?): If you’ve got access to Acrobat Professional, you can save a version and turn off the password security (apparently without the password, as I did).

(Thanks, Marten!)

September 27, 2006  ·  Lessig

YouTube has announced:

Sophisticated tools to help content owners identify their content on the site;
(1) Automated audio identification technology to help prevent works previously removed from the site at the request of the copyright owner from reappearing on the site;
(2) The opportunity to authorize and monetize the use of their works within the user-generated content on the site;
(3) Reporting and tracking systems for royalties, etc.

This is going to get very interesting.

September 16, 2006  ·  Lessig

You might have seen the article by RFK Jr. in Rolling Stone asking, Was the 2004 Election Stolen? It is a terrifying but powerful piece that makes it hard to believe what we all want to believe about the 2004 election.

Now come three researchers from Princeton to demonstrate how one could hack a Diebold machine and undetectably alter the election results. This is a video of their results:

You can read the full report here.

(Thanks, Ken!)

September 11, 2006  ·  Lessig

So I’m just finishing the page proofs on Code v2. As you recall (pretend if you don’t), one theme of Code was that commerce would develop tools to facilitate better regulability of the Net. I take a break to check the email account at the Academy. The Academy is using a hosted Gmail system. A Gmail add tells me about “DidTheyReadIt.com.” This service will allow you to determine whether someone read an email you sent them, how long they kept the message open, and from where they read it. It is trivially easy to use (you add their address to the address you’re sending, e.g., xxx@xxx.com.didtheyreadit.com), and it adds a bug to the message that tracks exactly how the message is used.

Wow.

May 23, 2006  ·  Lessig

From Henri Poole:

At 8:30am this morning, wearing neon Hazmat gear, 25 techology activists from FSF & EFF swarmed the 2006 Windows Hardware Engineering Conference in Seattle.

Following the lead of the French anti-DRM activists, the new initative, Defective By Design, is signing up activists interested in getting involved in local actions to bring awareness to the crippling effects of DRM on art, literature, music or film, and free software.