Lessig » bad law http://www.lessig.org Blog, news, books Sat, 12 Nov 2016 16:31:06 +0000 en-US hourly 1 http://wordpress.org/?v=3.8.2 Earmark reform http://www.lessig.org/2009/03/earmark-reform/ http://www.lessig.org/2009/03/earmark-reform/#comments Wed, 04 Mar 2009 10:05:15 +0000 http://lessig.org/blog/2009/03/earmark_reform.html
Hoyer to W.H.: Hands off our earmarks - Alex Isenstadt - POLITICO.com
Herein brews perhaps the first important battle of reform for this President. I have long thought the President should resign his membership in the Democratic Party -- not because he doesn't or shouldn't share the values of the Democratic Party, but because it is time we recognize we need a President above either partisanship (which got us the "Contract with America") or bipartisanship (which got us the Iraq War). But Hoyer's behavior here makes the point most starkly. Earmarks are a cancer: Not because they consume a large part of the budget -- they don't; not because we shouldn't be spending money -- we should. But because they feed the system of corruption that is the way Washington works. They are the cornerstone of a system feeding the worst of the lobbying mafia (another plug here for So Damn Much Money), which itself is the cornerstone of K St. capitalism. It was a mistake for Obama not to join McCain in targeting them during the campaign. It is a fantastic thing that he is beginning to target them now. Cancers can be benign or malignant. This cancer is malignant when it feeds K St. capitalism. It is benign when it is simply a locally informed direction to how the government's money (aka, the people's money) should be spent. And apropo of the benign form of this cancer: I've agreed to help Congresswoman Jackie Speier with an experiment for earmark reform. (Decidedly and clearly progressive) Congresswoman Speier voted against the appropriations bill because of the earmarks in the bill. But as reported in the SF Chronicle:
Speier is now trying a novel experiment: She's put together a citizen's oversight panel to recommend projects for federal funding, chaired by Stanford law professor Lawrence Lessig, a critic of earmarks, and including local elected, business and labor leaders. If the model works, she may offer legislation to expand it nationally.
The panel will meet in 3 or 4 public hearings over the next month of so to review earmark proposals. We will then report our recommendations back to her. The citizen panel idea is completely Speier's. It is a brilliant idea with enormous potential. More on the potential soon. ]]>
Hoyer to W.H.: Hands off our earmarks - Alex Isenstadt - POLITICO.com

Herein brews perhaps the first important battle of reform for this President. I have long thought the President should resign his membership in the Democratic Party — not because he doesn’t or shouldn’t share the values of the Democratic Party, but because it is time we recognize we need a President above either partisanship (which got us the “Contract with America”) or bipartisanship (which got us the Iraq War). But Hoyer’s behavior here makes the point most starkly.

Earmarks are a cancer: Not because they consume a large part of the budget — they don’t; not because we shouldn’t be spending money — we should. But because they feed the system of corruption that is the way Washington works. They are the cornerstone of a system feeding the worst of the lobbying mafia (another plug here for So Damn Much Money), which itself is the cornerstone of K St. capitalism. It was a mistake for Obama not to join McCain in targeting them during the campaign. It is a fantastic thing that he is beginning to target them now.

Cancers can be benign or malignant. This cancer is malignant when it feeds K St. capitalism. It is benign when it is simply a locally informed direction to how the government’s money (aka, the people’s money) should be spent.

And apropo of the benign form of this cancer: I’ve agreed to help Congresswoman Jackie Speier with an experiment for earmark reform. (Decidedly and clearly progressive) Congresswoman Speier voted against the appropriations bill because of the earmarks in the bill. But as reported in the SF Chronicle:

Speier is now trying a novel experiment: She’s put together a citizen’s oversight panel to recommend projects for federal funding, chaired by Stanford law professor Lawrence Lessig, a critic of earmarks, and including local elected, business and labor leaders. If the model works, she may offer legislation to expand it nationally.

The panel will meet in 3 or 4 public hearings over the next month of so to review earmark proposals. We will then report our recommendations back to her.

The citizen panel idea is completely Speier’s. It is a brilliant idea with enormous potential. More on the potential soon.

]]>
http://www.lessig.org/2009/03/earmark-reform/feed/ 14
activism down under http://www.lessig.org/2009/02/activism-down-under/ http://www.lessig.org/2009/02/activism-down-under/#comments Tue, 17 Feb 2009 10:49:27 +0000 http://lessig.org/blog/2009/02/activism_down_under.html New Zealand's new Copyright Law presumes 'Guilt Upon Accusation' and will Cut Off Internet Connections without a trial. Join the black out protest against it! The anger and activism at a rule in New Zealand requiring Internet service be terminated upon a mere accusation of copyright infringement is growing. ]]>
New Zealand's new Copyright Law presumes 'Guilt Upon Accusation' and will Cut Off Internet Connections without a trial. Join the black out protest against it!

The anger and activism at a rule in New Zealand requiring Internet service be terminated upon a mere accusation of copyright infringement is growing.

]]>
http://www.lessig.org/2009/02/activism-down-under/feed/ 15
from the Zittrain-told-us-so department http://www.lessig.org/2009/01/from-the-zittrain-told-us-so-d/ http://www.lessig.org/2009/01/from-the-zittrain-told-us-so-d/#comments Sun, 25 Jan 2009 16:31:11 +0000 http://lessig.org/blog/2009/01/from_the_zittrain-told-us-so_d.html
jz-worm.JPG
Among the less discussed but insanely important issues Obama needs his CTO to think through -- how to do security consistent with our (now restored) values. And on the must read list: The Future of the Internet and How to Stop It.]]>
jz-worm.JPG

Among the less discussed but insanely important issues Obama needs his CTO to think through — how to do security consistent with our (now restored) values. And on the must read list: The Future of the Internet and How to Stop It.

]]>
http://www.lessig.org/2009/01/from-the-zittrain-told-us-so-d/feed/ 16
End the [copyright] war: NOW! http://www.lessig.org/2008/12/end-the-copyright-war-now/ http://www.lessig.org/2008/12/end-the-copyright-war-now/#comments Wed, 24 Dec 2008 03:44:34 +0000 http://lessig.org/blog/2008/12/end_the_copyright_war_now.html
usnews.JPG
]]>
usnews.JPG

]]>
http://www.lessig.org/2008/12/end-the-copyright-war-now/feed/ 7
On effective ways to silence your critics http://www.lessig.org/2008/10/on-effective-ways-to-silence-y/ http://www.lessig.org/2008/10/on-effective-ways-to-silence-y/#comments Tue, 07 Oct 2008 02:31:26 +0000 http://lessig.org/blog/2008/10/on_effective_ways_to_silence_y.html the (incredible) story of a rule imposed on witnesses who wanted to testify in a credit card hearing that would permit the credit card companies to reveal their private financial data. "Only fair," defenders of the rule stated, such as Congrssman Bachus (R-AL). But when Warren asked whether the credit card companies would have to provide support for the factual claims they made, the answer was silence. Only consumers have to waive their privacy to testify. Credit card companies get to say whatever they want, without having to establish any factual basis. ]]> Harvard Professor Elizabeth Warren tells the (incredible) story of a rule imposed on witnesses who wanted to testify in a credit card hearing that would permit the credit card companies to reveal their private financial data. “Only fair,” defenders of the rule stated, such as Congrssman Bachus (R-AL). But when Warren asked whether the credit card companies would have to provide support for the factual claims they made, the answer was silence. Only consumers have to waive their privacy to testify. Credit card companies get to say whatever they want, without having to establish any factual basis.

]]>
http://www.lessig.org/2008/10/on-effective-ways-to-silence-y/feed/ 1
Gigi says the Orphan Works Act is dead (for this year) http://www.lessig.org/2008/10/gigi-says-the-orphan-works-act/ http://www.lessig.org/2008/10/gigi-says-the-orphan-works-act/#comments Tue, 07 Oct 2008 02:26:58 +0000 http://lessig.org/blog/2008/10/gigi_says_the_orphan_works_act.html story of the demise of the Orphan Works Bill. ]]> One of the very few times when I’m happy her work has not prevailed, Gigi Sohn of Public Knowledge on the story of the demise of the Orphan Works Bill.

]]>
http://www.lessig.org/2008/10/gigi-says-the-orphan-works-act/feed/ 0
the (unaccounted for) cost of saving the financial system http://www.lessig.org/2008/10/the-unaccounted-for-cost-of-sa/ http://www.lessig.org/2008/10/the-unaccounted-for-cost-of-sa/#comments Fri, 03 Oct 2008 23:51:08 +0000 http://lessig.org/blog/2008/10/the_unaccounted_for_cost_of_sa.html When Pres. Bush and Sec. Paulson proposed a bailout, it was three pages. When the House was done with it, it was over 100. When the Senate voted on it last night, it was over 400. I thought you'd be interested in reading about some of the earmarks that were slapped on. [McCain criticizing] Particularly bizarre was the tax exemption for wooden arrows used by children. In any event, it's sad to see a government so addicted to earmarks that it can't even handle a crisis without involving them.]]> A research assistant, Sina Kian, observes:
When Pres. Bush and Sec. Paulson proposed a bailout, it was three pages. When the House was done with it, it was over 100. When the Senate voted on it last night, it was over 400. I thought you’d be interested in reading about some of the earmarks that were slapped on. [McCain criticizing]

Particularly bizarre was the tax exemption for wooden arrows used by children. In any event, it’s sad to see a government so addicted to earmarks that it can’t even handle a crisis without involving them.

]]>
http://www.lessig.org/2008/10/the-unaccounted-for-cost-of-sa/feed/ 10
Unnecessary regulation of political speech (II) http://www.lessig.org/2007/04/unnecessary-regulation-of-poli/ http://www.lessig.org/2007/04/unnecessary-regulation-of-poli/#comments Sun, 29 Apr 2007 13:53:47 +0000 http://lessig.org/blog/2007/04/unnecessary_regulation_of_poli.html petition to the RNC/DNC, I was frankly hesitant just because it seemed so obvious. Why would any network resist? Then I read MSNBC's rules for the use of its recent debate, and realized (once again) just how clueless I am. As reported by Jeff Jarviz at BuzzMachine (and cross posted at Prezvid), here's MSNBC's regulation of the use of video of the Democratic debate:
USAGE RULES FOR USE OF AUDIO OR VIDEO OF MSNBC MATERIAL RULES FOR “THE SOUTH CAROLINA DEMOCRATIC CANDIDATES DEBATE” FROM MSNBC: (The following rules apply to all media organizations that are not part of NBC) News organizations, including radio, network television, cable television and local television may use excerpts of “The South Carolina Democratic Candidates Debate” subject to the following restrictions (internet use is not permitted): 1. An unobstructed onscreen credit “MSNBC” must appear during each debate excerpt and remain on screen for the entire excerpt. 2. Each debate excerpt must be introduced with an audio credit to MSNBC. 3. No excerpt may air in any medium until the live debate concludes at 8:30 pm ET. 4. No more than a combined total of 2 minutes of excerpts may be chosen for use during the period from the end of the live debate (8:30 pm ET) until 1:00 am ET on Friday, April 27. After 1:00 am ET, Friday, April 27, a total of 10 minutes may be selected (including any excerpts aired before 1:00AM). The selected excerpts may air as often as desired but the total of excerpts chosen may not exceed the limits outlined. 5. No excerpts may be aired after 8:30 pm on Saturday, May 26th. Excerpts may not be archived. Any further use of excerpts is by express permission of MSNBC only. 6. All debate excerpts must be taped directly from MSNBC’s cablecast or obtained directly from MSNBC and may not be obtained from other sources, such as satellite or other forms of transmission. No portions of the live event not aired by MSNBC may be used. A feed of MSNBC’s telecast of the debate will be provided (details below), additionally limited audio/video mults will be available on site in the media center.
This is ridiculous. I'm grateful to everyone who wrote to RNC/DNC. I've spoken to the DNC. I've not yet been able to get the RNC to return a telephone call. But this issue should move beyond the parties to the candidates. No candidate should agree to be a part of a debate broadcast by an organization that purports to exercise this type of control over the video of the debate. No candidate, that is, that understands this century.]]>
So when I was talking to others about the petition to the RNC/DNC, I was frankly hesitant just because it seemed so obvious. Why would any network resist? Then I read MSNBC’s rules for the use of its recent debate, and realized (once again) just how clueless I am.

As reported by Jeff Jarviz at BuzzMachine (and cross posted at Prezvid), here’s MSNBC’s regulation of the use of video of the Democratic debate:

USAGE RULES FOR USE OF AUDIO OR VIDEO OF MSNBC MATERIAL RULES FOR “THE SOUTH CAROLINA DEMOCRATIC CANDIDATES DEBATE” FROM MSNBC:

(The following rules apply to all media organizations that are not part of NBC)

News organizations, including radio, network television, cable television and local television may use excerpts of “The South Carolina Democratic Candidates Debate” subject to the following restrictions (internet use is not permitted):

1. An unobstructed onscreen credit “MSNBC” must appear during each debate excerpt and remain on screen for the entire excerpt.

2. Each debate excerpt must be introduced with an audio credit to MSNBC.

3. No excerpt may air in any medium until the live debate concludes at 8:30 pm ET.

4. No more than a combined total of 2 minutes of excerpts may be chosen for use during the period from the end of the live debate (8:30 pm ET) until 1:00 am ET on Friday, April 27. After 1:00 am ET, Friday, April 27, a total of 10 minutes may be selected (including any excerpts aired before 1:00AM). The selected excerpts may air as often as desired but the total of excerpts chosen may not exceed the limits outlined.

5. No excerpts may be aired after 8:30 pm on Saturday, May 26th. Excerpts may not be archived. Any further use of excerpts is by express permission of MSNBC only.

6. All debate excerpts must be taped directly from MSNBC’s cablecast or obtained directly from MSNBC and may not be obtained from other sources, such as satellite or other forms of transmission. No portions of the live event not aired by MSNBC may be used.

A feed of MSNBC’s telecast of the debate will be provided (details below), additionally limited audio/video mults will be available on site in the media center.

This is ridiculous. I’m grateful to everyone who wrote to RNC/DNC. I’ve spoken to the DNC. I’ve not yet been able to get the RNC to return a telephone call.

But this issue should move beyond the parties to the candidates. No candidate should agree to be a part of a debate broadcast by an organization that purports to exercise this type of control over the video of the debate. No candidate, that is, that understands this century.

]]>
http://www.lessig.org/2007/04/unnecessary-regulation-of-poli/feed/ 15
Viacom v. YouTube http://www.lessig.org/2007/03/viacom-v-youtube/ http://www.lessig.org/2007/03/viacom-v-youtube/#comments Tue, 13 Mar 2007 14:55:55 +0000 http://lessig.org/blog/2007/03/viacom_v_youtube.html Viacom_logo.png v. Logo_tagline_sm.gif Ok, so just about 10 years after the content industry got Congress to adopt one of the most sweeping changes in American copyright law (aka, the DMCA), the content industry has decided that it doesn't like one part of that law -- the Safe Harbor Provision that protects sites such as YouTube. But rather than go to Congress to get them to change the law, the content industry, knowing Congress would not change the law, turns to its new best friend -- the common law of copyright, as articulated by the Supreme Court. See, e.g., Grokster. Why burden Congress with the hassle of law making when you've got a Supreme Court eager to jump in and legislate? At least, that is, when there's no Constitutional issue at stake. When the Constitution's at stake, then it is a matter for -- you guessed it -- Congress. See, e.g., Eldred v. Ashcroft. Note Count IV in the complaint - "Inducement of Copyright Infringement" - aka, the monster Grokster created. This case -- if it is really intended as a law suit and not a move in a bargaining game -- should be decided on the meaning of s512(c). The question will be whether YouTube has the "ability to control" uploads before they are identified as infringing. Viacom complains that YouTube shifts to it the burden of identifying infringing content. Not true. The DMCA does. Until at least Congress amends it, or the Supreme Court adds some new common law of copyright to the statute books.]]>
Viacom_logo.png v. Logo_tagline_sm.gif

Ok, so just about 10 years after the content industry got Congress to adopt one of the most sweeping changes in American copyright law (aka, the DMCA), the content industry has decided that it doesn’t like one part of that law — the Safe Harbor Provision that protects sites such as YouTube. But rather than go to Congress to get them to change the law, the content industry, knowing Congress would not change the law, turns to its new best friend — the common law of copyright, as articulated by the Supreme Court. See, e.g., Grokster. Why burden Congress with the hassle of law making when you’ve got a Supreme Court eager to jump in and legislate? At least, that is, when there’s no Constitutional issue at stake. When the Constitution’s at stake, then it is a matter for — you guessed it — Congress. See, e.g., Eldred v. Ashcroft.

Note Count IV in the complaint – “Inducement of Copyright Infringement” – aka, the monster Grokster created.

This case — if it is really intended as a law suit and not a move in a bargaining game — should be decided on the meaning of s512(c). The question will be whether YouTube has the “ability to control” uploads before they are identified as infringing. Viacom complains that YouTube shifts to it the burden of identifying infringing content. Not true. The DMCA does. Until at least Congress amends it, or the Supreme Court adds some new common law of copyright to the statute books.

]]>
http://www.lessig.org/2007/03/viacom-v-youtube/feed/ 46
Kahle v. Gonzales: a review and a request http://www.lessig.org/2007/01/kahle-v-gonzales-a-review-and/ http://www.lessig.org/2007/01/kahle-v-gonzales-a-review-and/#comments Thu, 25 Jan 2007 08:14:40 +0000 http://lessig.org/blog/2007/01/kahle_v_gonzales_a_review_and.html wfwee.png wfwoee.png wowee.png wowoee.png

So as noted by some, Kahle v. Gonzales was decided Monday. After the oral argument, the result was not a surprise. The reasoning of the opinion, however, is. (I'm going to restrict these comments to part I of the opinion). A clue that we were in for this sort of surprise was the question asked again and again by Chief Judge Schroeder, how was this case different from Eldred? This was one of those "huh?" moments in the argument. For sure, there was one similarity -- I was arguing this case, and I argued Eldred. But beyond that similarity, the cases were plainly different.

In Eldred, among other requests, we asked the Court to apply First Amendment review to a statute that extended existing copyright terms. In this case, we were challenging the shift from an opt-in system of copyright (where you get a copyright if and only if you take affirmative steps) to an opt-out system (where copyright automatically covers everything). (These two claims are obviously different -- we could just as easily be attacking the opt-in/opt-out distinction prospectively, rather than retrospectively. There's thus no necessary connection between them.) In Eldred, we were applying ordinary First Amendment law to say that this speech regulation ought to get First Amendment review. In this case, we were applying the rule announced in Eldred, that First Amendment review was limited to changes in the "traditional contours of copyright protection."

So again, the question, how we the cases different?, was puzzling. That puzzle was not lifted by reading the opinion. Though the Court acknowledged that there had been a change from an opt-in to an opt-out system of copyright, the court held that because Eldred had resolved a "similar" claim, it would not "ignore the clear holding of Eldred" (about, apparently, not the same claim, but a "similar" claim.) I don't quite get this negative horse-shoe principle of judicial decision making (you're close enough to a losing case to lose). For the claim in Eldred is neither "similar" in form, and is certainly not "similar" in substance. First form: Again, in Eldred, we asked the Court to test the extensions of existing copyrights under the First Amendment. The Court declined our request -- not because, as the government essentially argued, the only First Amendment question for copyright laws is whether Congress had changed "fair use" or "idea/expression," but because the Court found that Congress had a tradition of extending existing terms whenever it extended terms prospectively, and it was not going to upset that tradition. As the Court thus wrote, so long as Congress doesn't change the "traditional contours of copyright protection" "no further First Amendment review" is required. This is, as I've written before, a very sensible, Scalia-like test. It essentially says: Where there's 200 years of tradition behind a practice, we're not going to question it now. But when Congress changes that tradition, this new regulation, like any regulation of speech, should be subject to ordinary First Amendment review. Our claim in Kahle was fundamentally different. We were not arguing that First Amendment review should apply to a 200 year old tradition. We were instead asking that First Amendment review be applied to a radical change in that tradition. Beginning in 1976, Congress had changed perhaps the most significant tradition in American copyright law when it moved from an opt-in to an opt-out system. For 186 years, copyright applied only where the copyright holder took affirmative steps to claim it. That requirement profoundly affected the scope and reach of copyright. Our claim was not that Congress couldn't make such a change. But instead, it was simply that any such change must be tested under the First Amendment. The "traditional contours of copyright protection" claim was new in Eldred. Ours was the second case to raise it since Eldred. As nothing in Eldred was based upon an argument that Congress had changed a "tradition," Eldred clearly could not have held anything vis-a-vis a claim about a changed tradition. Logically speaking -- or perhaps better, accurately speaking -- there's thus no way that Eldred's "clear holding" could have touched the claim plaintiffs made here. Substance: But again, the Court was moved by its apparent view of substance, not form. It said our claim was "similar," not the same. And if it isn't similar in form (as I've just argued), the Court must have believed it was similar in substance. Indeed, that's the plain import of the 5 paragraph section of the opinion addressing the claim. Because the Court in Eldred had said that the CTEA was simply "plac[ing] existing and future copyrights in parity," any statute that did that was essentially the same. But again, Eldred didn't say the CTEA was exempt from First Amendment review because it put "existing and future copyrights in parity." It said the CTEA was exempt because there was a long tradition of putting "existing and future copyrights in parity." Here, there obviously was no long tradition. Our whole point was that the tradition had changed. More fundamentally, even if there is a "similarity" in the result (i.e., that terms for existing copyrights and future copyrights are in parity), there is a radical difference in the effect of these two changes. The Court thought in substance, this was the same in Eldred. In substance, however, Eldred is but a jot compared to the massive change effected by the move from an opt-in to an opt-out system of copyright. I should have thought that difference was intuitive and obvious. It is obvious I was wrong about that. So I've been struggling since Monday to think about a way to show, graphically, the difference between an opt-in and opt-out regime, as compared with the change effected by Eldred. That difference is what the above graphs try to demonstrate. The green in the graph is the simulated stock of works in the public domain from 1791-1978; the red is the simulated stock of works under copyright from 1791 to 1978. As you can see, there is huge difference in the effect on the public domain in moving from a regime with formalities (e.g., an opt-in system) to a regime without formalities. And there is a tiny difference (not even perceptible) on the long term public domain in moving from a system that permits retrospective extensions (what I call "Eldred Extensions" to one that does not.) Why does this difference matter? Because if you accept the Supreme Court's view that copyright is to be an "engine of free expression," by creating incentives to create and spread new work, the difference between an opt-in and opt-out regime is that the opt-out regime burdens a vast amount of speech with absolutely no connection to this "engine of free expression." What the "filter" (as the 9th Circuit put it) of formalities did was to remove copyright regulation where presumptively it was doing no further good -- where the work had no continuing commercial value. It thus removed regulation over precisely that speech that could not benefit from copyrights' regulation anymore. These cases are thus neither "similar" in the formal claims they make, nor in the actual effect on the public domain that each attacks. The only thing similar, again, is that I've been involved with the cases, and that the courts can't yet be bothered to reason seriously about these matters. These graphs are the product of a model I developed. The model is plainly beta, and I'd be really grateful for any help in verifying it, or in any ideas about how better to describe (graphically) the significance of the difference. If you've got talents in this area, please read the Extended Entry. There you'll find a link to the model and an explanation of how it works. I'm eager to be shown my mistakes here, or a better way to make this obvious point.]]>

wfwee.png wfwoee.png
wowee.png wowoee.png

So as noted by some, Kahle v. Gonzales was decided Monday. After the oral argument, the result was not a surprise. The reasoning of the opinion, however, is. (I’m going to restrict these comments to part I of the opinion).

A clue that we were in for this sort of surprise was the question asked again and again by Chief Judge Schroeder, how was this case different from Eldred? This was one of those “huh?” moments in the argument. For sure, there was one similarity — I was arguing this case, and I argued Eldred. But beyond that similarity, the cases were plainly different.

In Eldred, among other requests, we asked the Court to apply First Amendment review to a statute that extended existing copyright terms. In this case, we were challenging the shift from an opt-in system of copyright (where you get a copyright if and only if you take affirmative steps) to an opt-out system (where copyright automatically covers everything). (These two claims are obviously different — we could just as easily be attacking the opt-in/opt-out distinction prospectively, rather than retrospectively. There’s thus no necessary connection between them.)

In Eldred, we were applying ordinary First Amendment law to say that this speech regulation ought to get First Amendment review. In this case, we were applying the rule announced in Eldred, that First Amendment review was limited to changes in the “traditional contours of copyright protection.”

So again, the question, how we the cases different?, was puzzling.

That puzzle was not lifted by reading the opinion. Though the Court acknowledged that there had been a change from an opt-in to an opt-out system of copyright, the court held that because Eldred had resolved a “similar” claim, it would not “ignore the clear holding of Eldred” (about, apparently, not the same claim, but a “similar” claim.)

I don’t quite get this negative horse-shoe principle of judicial decision making (you’re close enough to a losing case to lose). For the claim in Eldred is neither “similar” in form, and is certainly not “similar” in substance.

First form: Again, in Eldred, we asked the Court to test the extensions of existing copyrights under the First Amendment. The Court declined our request — not because, as the government essentially argued, the only First Amendment question for copyright laws is whether Congress had changed “fair use” or “idea/expression,” but because the Court found that Congress had a tradition of extending existing terms whenever it extended terms prospectively, and it was not going to upset that tradition. As the Court thus wrote, so long as Congress doesn’t change the “traditional contours of copyright protection” “no further First Amendment review” is required.

This is, as I’ve written before, a very sensible, Scalia-like test. It essentially says: Where there’s 200 years of tradition behind a practice, we’re not going to question it now. But when Congress changes that tradition, this new regulation, like any regulation of speech, should be subject to ordinary First Amendment review.

Our claim in Kahle was fundamentally different. We were not arguing that First Amendment review should apply to a 200 year old tradition. We were instead asking that First Amendment review be applied to a radical change in that tradition. Beginning in 1976, Congress had changed perhaps the most significant tradition in American copyright law when it moved from an opt-in to an opt-out system. For 186 years, copyright applied only where the copyright holder took affirmative steps to claim it. That requirement profoundly affected the scope and reach of copyright. Our claim was not that Congress couldn’t make such a change. But instead, it was simply that any such change must be tested under the First Amendment.

The “traditional contours of copyright protection” claim was new in Eldred. Ours was the second case to raise it since Eldred. As nothing in Eldred was based upon an argument that Congress had changed a “tradition,” Eldred clearly could not have held anything vis-a-vis a claim about a changed tradition. Logically speaking — or perhaps better, accurately speaking — there’s thus no way that Eldred’s “clear holding” could have touched the claim plaintiffs made here.

Substance: But again, the Court was moved by its apparent view of substance, not form. It said our claim was “similar,” not the same. And if it isn’t similar in form (as I’ve just argued), the Court must have believed it was similar in substance.

Indeed, that’s the plain import of the 5 paragraph section of the opinion addressing the claim. Because the Court in Eldred had said that the CTEA was simply “plac[ing] existing and future copyrights in parity,” any statute that did that was essentially the same.

But again, Eldred didn’t say the CTEA was exempt from First Amendment review because it put “existing and future copyrights in parity.” It said the CTEA was exempt because there was a long tradition of putting “existing and future copyrights in parity.” Here, there obviously was no long tradition. Our whole point was that the tradition had changed.

More fundamentally, even if there is a “similarity” in the result (i.e., that terms for existing copyrights and future copyrights are in parity), there is a radical difference in the effect of these two changes. The Court thought in substance, this was the same in Eldred. In substance, however, Eldred is but a jot compared to the massive change effected by the move from an opt-in to an opt-out system of copyright.

I should have thought that difference was intuitive and obvious. It is obvious I was wrong about that. So I’ve been struggling since Monday to think about a way to show, graphically, the difference between an opt-in and opt-out regime, as compared with the change effected by Eldred. That difference is what the above graphs try to demonstrate. The green in the graph is the simulated stock of works in the public domain from 1791-1978; the red is the simulated stock of works under copyright from 1791 to 1978.

As you can see, there is huge difference in the effect on the public domain in moving from a regime with formalities (e.g., an opt-in system) to a regime without formalities. And there is a tiny difference (not even perceptible) on the long term public domain in moving from a system that permits retrospective extensions (what I call “Eldred Extensions” to one that does not.)

Why does this difference matter? Because if you accept the Supreme Court’s view that copyright is to be an “engine of free expression,” by creating incentives to create and spread new work, the difference between an opt-in and opt-out regime is that the opt-out regime burdens a vast amount of speech with absolutely no connection to this “engine of free expression.” What the “filter” (as the 9th Circuit put it) of formalities did was to remove copyright regulation where presumptively it was doing no further good — where the work had no continuing commercial value. It thus removed regulation over precisely that speech that could not benefit from copyrights’ regulation anymore.

These cases are thus neither “similar” in the formal claims they make, nor in the actual effect on the public domain that each attacks. The only thing similar, again, is that I’ve been involved with the cases, and that the courts can’t yet be bothered to reason seriously about these matters.

These graphs are the product of a model I developed. The model is plainly beta, and I’d be really grateful for any help in verifying it, or in any ideas about how better to describe (graphically) the significance of the difference. If you’ve got talents in this area, please read the Extended Entry. There you’ll find a link to the model and an explanation of how it works. I’m eager to be shown my mistakes here, or a better way to make this obvious point.

The model simulates the effect on the stock of work in copyright and in the public domain from 1791 to 1978. During that period, copyright was an opt-in system of regulation. During that period, Congress twice extended existing copyright terms. (In 1831, Congress increased the initial term of copyright from 14 to 28 years; works in their existing term could opt-in to that extension. In 1909, Congress increased the renewal term of copyright from 14 to 28 years. Works in their renewal term could get the benefit of that extension if they registered for the extension).

I’ve built the model so you can simulate the effect on the stock of works in the public domain or under copyright if you switched off formalities (you do that by assuming 100% of the works published satisfied formalities). I’ve also built it so you can simulate the effect on the stock of works in the public domain or under copyright if you switched off the retroactive extension of existing copyrights (by setting the % taking advantage of the extension to the normal rates for renewal in with the 1831 extension, and 0% for the 1909 extension). Note, the model does not assume anything about any endogenous effects. For example, you might think that eliminating formalities would increase the rate of publication. I’ve not tried to specify that, but the model does allow you to change the growth of publications.

Again, this is a beta model. I’d be very grateful for any errors identified, or for a better specification of the same. After a review by a couple friends, I will post any corrections to this. At that time, I’ll also include any corrections noted in the comments.

You can access the model here.

And you can access a description of the variables here.

]]> http://www.lessig.org/2007/01/kahle-v-gonzales-a-review-and/feed/ 12
Dems to the Net: Go to hell http://www.lessig.org/2006/12/dems-to-the-net-go-to-hell/ http://www.lessig.org/2006/12/dems-to-the-net-go-to-hell/#comments Sun, 24 Dec 2006 05:20:37 +0000 http://lessig.org/blog/2006/12/dems_to_the_net_go_to_hell.html Real reform -- not the piddly full-employment-act-for-lawyers reform proposed by the Copyright Office for "orphan works," or the puny reform suggested for digital libraries. Instead, reform that tries to fit the legitimate objectives of copyright -- to assure that artists have the incentives they need to create great new work -- into the contours of digital technology. To craft that reform would require real work. I don't think anyone has a clear picture of what would be best yet. But what is clear is that the war on technology of the last decade must come to an end. And the efforts by content holders to leverage their power over rights they can't even prove they own (see, e.g., the Google Book Search battle) into control over the architecture of the net must be stopped. No one should defend "piracy." But no one should believe that the way the law currently defines "piracy" makes any sense at all. So is there any hope for such reform from the Democrats? Word from Washington so far: Fat chance. As reported in the LA Times two weeks ago (registration required but hey, it's LA), the crucial House IP subcommittee will be chaired by Hollywood Howard (Berman) -- among the most extreme of the IP warriors. It is this committee that largely determines what reform Congress considers. It is the Chairman who picks what voices get heard. And while Berman is a brilliant man -- whose brilliance could really have been used in the problems facing the mid-east -- his brilliance has not yet been directed towards working out the problems of IP and the Net with any view beyond the narrowest of special interests. This is like making a congressman from Detroit head of a Automobile Safety sub-committee, or a senator from Texas head of a Global Warming sub-committee. Are you kidding, Dems? The choice signals clearly the party's view about the issues, and its view of the "solution": more of the same. This war -- no more successful than President Bush's war -- will continue. No doubt, there are Net issues beyond copyright -- surveillance, net neutrality, etc. But I suggest this choice is an important signal about this party (and I'm afraid, any party). I once asked a senior staffer of a brilliant Senator why the Senator didn't take a stronger position in favor of Net Neutrality. "No Senator remains a Senator opposing an industry with that much money" was his answer. And so too here. The Dems have looked at the potential "return" from the activists on the Net. They've considered the kids being sued by the industry (including the kids running MySpace, and maybe soon, YouTube), and the kids creating amazing new (but presumptively illegal) mashups and remixes, and they have compared that value to the party with the value promised by Hollywood. Result: the 20th Century continues to rule. Dems to the Net: "Thanks for the blogs. And please continue to get outraged by MoveOn messages. But don't think for a second we're interested in hearing anything beyond the charming wisdom of Jack Valenti. We appreciate your support. We appreciate your money. But come on -- you're all criminals. Don't expect your criminal ways to be taken seriously by an institution as respected as the US Congress."]]> “Radical” changes in Washington always have this Charlie Brown/Lucy-like character (remember Lucy holding the football?): it doesn’t take long before you realize how little really ever changes in DC. The latest example is the Dems and IP issues as they affect the Net. Message to the Net from the newly Democratic House? Go to hell.

As everyone knows, one issue critical to those who are making the Net interesting (for politics at least) is IP reform. Not “reform” in the sense of the last decade (e.g., Sonny Bono Copyright Term Extension Act, DMCA, NET Act, etc.), but real reform designed to make IP laws work sensibly in the digital age. Real reform — not the piddly full-employment-act-for-lawyers reform proposed by the Copyright Office for “orphan works,” or the puny reform suggested for digital libraries. Instead, reform that tries to fit the legitimate objectives of copyright — to assure that artists have the incentives they need to create great new work — into the contours of digital technology.

To craft that reform would require real work. I don’t think anyone has a clear picture of what would be best yet. But what is clear is that the war on technology of the last decade must come to an end. And the efforts by content holders to leverage their power over rights they can’t even prove they own (see, e.g., the Google Book Search battle) into control over the architecture of the net must be stopped. No one should defend “piracy.” But no one should believe that the way the law currently defines “piracy” makes any sense at all.

So is there any hope for such reform from the Democrats? Word from Washington so far: Fat chance. As reported in the LA Times two weeks ago (registration required but hey, it’s LA), the crucial House IP subcommittee will be chaired by Hollywood Howard (Berman) — among the most extreme of the IP warriors. It is this committee that largely determines what reform Congress considers. It is the Chairman who picks what voices get heard. And while Berman is a brilliant man — whose brilliance could really have been used in the problems facing the mid-east — his brilliance has not yet been directed towards working out the problems of IP and the Net with any view beyond the narrowest of special interests.

This is like making a congressman from Detroit head of a Automobile Safety sub-committee, or a senator from Texas head of a Global Warming sub-committee. Are you kidding, Dems? The choice signals clearly the party’s view about the issues, and its view of the “solution”: more of the same. This war — no more successful than President Bush’s war — will continue.

No doubt, there are Net issues beyond copyright — surveillance, net neutrality, etc. But I suggest this choice is an important signal about this party (and I’m afraid, any party). I once asked a senior staffer of a brilliant Senator why the Senator didn’t take a stronger position in favor of Net Neutrality. “No Senator remains a Senator opposing an industry with that much money” was his answer.

And so too here. The Dems have looked at the potential “return” from the activists on the Net. They’ve considered the kids being sued by the industry (including the kids running MySpace, and maybe soon, YouTube), and the kids creating amazing new (but presumptively illegal) mashups and remixes, and they have compared that value to the party with the value promised by Hollywood. Result: the 20th Century continues to rule.

Dems to the Net: “Thanks for the blogs. And please continue to get outraged by MoveOn messages. But don’t think for a second we’re interested in hearing anything beyond the charming wisdom of Jack Valenti. We appreciate your support. We appreciate your money. But come on — you’re all criminals. Don’t expect your criminal ways to be taken seriously by an institution as respected as the US Congress.”

]]>
http://www.lessig.org/2006/12/dems-to-the-net-go-to-hell/feed/ 25
this is so depressing http://www.lessig.org/2006/10/this-is-so-depressing/ http://www.lessig.org/2006/10/this-is-so-depressing/#comments Wed, 01 Nov 2006 04:27:45 +0000 http://lessig.org/blog/2006/10/this_is_so_depressing.html here before, Britain is considering extending its copyright term for recordings from 50 years to 95 years -- including both existing recordings and recordings in the future. (Remember, we increased our copyright term to "harmonize" with the Europeans; now the Europeans are increasing their copyright terms to "harmonize" with the US. Will this cycle end? Of course not.) The ippr just released a very smart report about IP issues generally. It identifies well the errors in this pattern of extension. (The report is not free for downloading (a problem it didn't note), but an executive summary is here.) And a new activist group in Britain, the UK Open Rights Group will soon release a short policy paper. But the real problem with this debate is that the proponents for term extension are (1) sexy media figures who (2) only discuss the issue in well choreographed events that allow no real opposition to their views to be heard, while (3) the press never adequately covers events where the issue is properly, and adequately, addressed. Exhibit one in support of the above: This piece by a favorite of this page, Andy Orlowski (remember his really nasty piece about my representing Hardwicke in the boychoir case, ending with: "Lessig has shown an ability to clutch defeat from the jaws of victory before." No followup by Andy after the verdict.) Orlowski usually gets media issues right. But this piece is full of the most obvious errors. (E.g., he refers to "the estimates of economic Armageddon that term extenders propose - which may be £143m over 10 years, according to PriceWaterhouseCooper," never pausing to actually analyze what this "Armageddon" is: The argument is that Britain hurts because a £143m tax is not imposed on the British people in order to benefit the likes of Sir Cliff. Talk about trickle down economics.) But reporters just to report what they see. So I take it Orlowski didn't see the full story. No surprise, since as he mentioned, the "panel discussing the issue was loaded with advocates for extending copyright terms, and only one dissenter." Ah yes, Soviet style public policy discussion, again itself not remarked in Orlowski's article. The sexy will never stoop to debate this issue in a fair and balanced context so long as they get away with "debating" it in the sort of contexts they do. And they get away with it only so long as the press and politicians permit them to. So let's let this permitting stop: Britain should demand a debate about these issues in a context in which both sides get a real and balanced opportunity to present the views. (Meanwhile, don't miss Jonathan Zittrain's presentation at the Open Rights Group "Release the Music" event on November 13. Details here and here.) I'm eager that an alternative get pushed into this debate. As mentioned before, MP Don Foster has suggested terms should be extended only for those who ask. For works whose copyright owners don't ask, the copyright would pass into the public domain. I made a similar proposal to the Gowers Commission. It would be fantastic if Britain took the lead in this obvious compromise to an obviously mistaken policy -- term extension for existing works. Meanwhile, as a demonstration of the value of the public domain, if you're not in the US, you can get access to this fantastic collection of 1500 LPs of classical music, in the public domain in Europe, but not in the US, digitized and made available by the EuropeanArchive. Don't count on access to this anytime soon, United States: Nothing published will enter the public domain in the US through the expiration of a copyright term until 2019.]]> So as noted here before, Britain is considering extending its copyright term for recordings from 50 years to 95 years — including both existing recordings and recordings in the future. (Remember, we increased our copyright term to “harmonize” with the Europeans; now the Europeans are increasing their copyright terms to “harmonize” with the US. Will this cycle end? Of course not.)

The ippr just released a very smart report about IP issues generally. It identifies well the errors in this pattern of extension. (The report is not free for downloading (a problem it didn’t note), but an executive summary is here.) And a new activist group in Britain, the UK Open Rights Group will soon release a short policy paper.

But the real problem with this debate is that the proponents for term extension are (1) sexy media figures who (2) only discuss the issue in well choreographed events that allow no real opposition to their views to be heard, while (3) the press never adequately covers events where the issue is properly, and adequately, addressed.

Exhibit one in support of the above: This piece by a favorite of this page, Andy Orlowski (remember his really nasty piece about my representing Hardwicke in the boychoir case, ending with: “Lessig has shown an ability to clutch defeat from the jaws of victory before.” No followup by Andy after the verdict.) Orlowski usually gets media issues right. But this piece is full of the most obvious errors. (E.g., he refers to “the estimates of economic Armageddon that term extenders propose – which may be £143m over 10 years, according to PriceWaterhouseCooper,” never pausing to actually analyze what this “Armageddon” is: The argument is that Britain hurts because a £143m tax is not imposed on the British people in order to benefit the likes of Sir Cliff. Talk about trickle down economics.)

But reporters just to report what they see. So I take it Orlowski didn’t see the full story. No surprise, since as he mentioned, the “panel discussing the issue was loaded with advocates for extending copyright terms, and only one dissenter.” Ah yes, Soviet style public policy discussion, again itself not remarked in Orlowski’s article.

The sexy will never stoop to debate this issue in a fair and balanced context so long as they get away with “debating” it in the sort of contexts they do. And they get away with it only so long as the press and politicians permit them to. So let’s let this permitting stop: Britain should demand a debate about these issues in a context in which both sides get a real and balanced opportunity to present the views.

(Meanwhile, don’t miss Jonathan Zittrain’s presentation at the Open Rights Group “Release the Music” event on November 13. Details here and here.)

I’m eager that an alternative get pushed into this debate. As mentioned before, MP Don Foster has suggested terms should be extended only for those who ask. For works whose copyright owners don’t ask, the copyright would pass into the public domain. I made a similar proposal to the Gowers Commission. It would be fantastic if Britain took the lead in this obvious compromise to an obviously mistaken policy — term extension for existing works.

Meanwhile, as a demonstration of the value of the public domain, if you’re not in the US, you can get access to this fantastic collection of 1500 LPs of classical music, in the public domain in Europe, but not in the US, digitized and made available by the EuropeanArchive. Don’t count on access to this anytime soon, United States: Nothing published will enter the public domain in the US through the expiration of a copyright term until 2019.

]]>
http://www.lessig.org/2006/10/this-is-so-depressing/feed/ 24
Sharecropping at the Washington Post http://www.lessig.org/2006/08/sharecropping-at-the-washingto/ http://www.lessig.org/2006/08/sharecropping-at-the-washingto/#comments Thu, 10 Aug 2006 11:52:07 +0000 http://lessig.org/blog/2006/08/sharecropping_at_the_washingto.html post about the Washington Post's plan to run a mash-up. According to the terms and conditions, as a condition of participating, the artists must agree to "grant and assign all right, title and interest in the Recording to" the Washington Post. Good for the Washington Post -- mash-ups are an important and valuable form of creativity encouraged (and democratized) by digital technology. But I believe that the artists who create them deserve to own and hold the copyright to their new creative work. And in my view, any self-respecting artist should refuse to participate in any sharecropping mash-up. You did the work. You should own the rights to the work you did.]]> Denise Howell has a great post about the Washington Post’s plan to run a mash-up. According to the terms and conditions, as a condition of participating, the artists must agree to “grant and assign all right, title and interest in the Recording to” the Washington Post.

Good for the Washington Post — mash-ups are an important and valuable form of creativity encouraged (and democratized) by digital technology. But I believe that the artists who create them deserve to own and hold the copyright to their new creative work. And in my view, any self-respecting artist should refuse to participate in any sharecropping mash-up. You did the work. You should own the rights to the work you did.

]]>
http://www.lessig.org/2006/08/sharecropping-at-the-washingto/feed/ 2
The Read-Write Internet http://www.lessig.org/2006/01/the-readwrite-internet/ http://www.lessig.org/2006/01/the-readwrite-internet/#comments Tue, 17 Jan 2006 12:20:33 +0000 http://lessig.org/blog/2006/01/the_readwrite_internet.html
amv.jpg
I wrote this piece for the FT about the next war in copyright. If you've not seen AMVs, you should. Look here. This will be the next big copyright war -- whether this form of noncommercial creativity will be allowed. But there will be a big difference with this war and the last (over p2p filesharing). In the p2p wars, the side that defended innovation free of judicial supervision was right. But when ordinary people heard both sides of the argument, 90% were against us. In this war, the side that will defend these new creators is right. And when ordinary people hear both sides, and more importantly, see the creativity their kids are capable of, 90% will be with us. I saw this first hand in the eyes of a father. From the FT piece:
But to those building the Read-Write internet, economics is not what matters. Nor is it what matters to their parents. After a talk in which I presented some AMV work, a father said to me: “I don’t think you really realise just how important this is. My kid couldn’t get into college till we sent them his AMVs. Now he’s a freshman at a university he never dreamed he could attend.”
These are creators, too. Their creativity harms no one. It is the heart of a whole new genre of creativity -- not just with anime, but will all sorts of culture. If, that is, it is allowed. Update: A relevant City of Heroes video on in-game IP.]]>
amv.jpg

I wrote this piece for the FT about the next war in copyright. If you’ve not seen AMVs, you should. Look here.

This will be the next big copyright war — whether this form of noncommercial creativity will be allowed. But there will be a big difference with this war and the last (over p2p filesharing). In the p2p wars, the side that defended innovation free of judicial supervision was right. But when ordinary people heard both sides of the argument, 90% were against us. In this war, the side that will defend these new creators is right. And when ordinary people hear both sides, and more importantly, see the creativity their kids are capable of, 90% will be with us.

I saw this first hand in the eyes of a father. From the FT piece:

But to those building the Read-Write internet, economics is not what matters. Nor is it what matters to their parents. After a talk in which I presented some AMV work, a father said to me: “I don’t think you really realise just how important this is. My kid couldn’t get into college till we sent them his AMVs. Now he’s a freshman at a university he never dreamed he could attend.”

These are creators, too. Their creativity harms no one. It is the heart of a whole new genre of creativity — not just with anime, but will all sorts of culture. If, that is, it is allowed.

Update: A relevant City of Heroes video on in-game IP.

]]>
http://www.lessig.org/2006/01/the-readwrite-internet/feed/ 34
the fiction zone that DC has become http://www.lessig.org/2006/01/the-fiction-zone-that-dc-has-b/ http://www.lessig.org/2006/01/the-fiction-zone-that-dc-has-b/#comments Sat, 14 Jan 2006 01:31:55 +0000 http://lessig.org/blog/2006/01/the_fiction_zone_that_dc_has_b.html The Washington Internet Daily (which apparently is not on the Internet) has a story predicting the Telecom Bill will pass the House this year. The only sticking point seems to be the “controversial” “net neutrality” proposal. Says Howard Waltzman, the committee’s majority chief telecom counsel, and “net neutrality” opponent: “We’re going to rely on the market to regulate these services and not have a heavy hand in government regulation.” Waltzman thinks net neutrality regulation would turn “broadband pipes into railroads and regulating them under common carriage.” As he explains:
“The reason the Internet has thrived is because it’s existed in an unregulated environment. Regulating… under common carriage would be a complete step backward for the Internet.”

So half right, but wholly wrong. For of course, when the Internet first reached beyond research facilities to the masses, it did so on regulated lines — telephone lines. Had the telephone companies been free of the “heavy hand” of government regulation, it’s quite clear what they would have done — they would have killed it, just as they did when Paul Baran first proposed the idea in 1964. It was precisely because they were not free to kill it, because the “heavy hand[ed]” regulation required them to act neutrally, that the Internet was able to happen, and then flourish.

So Waltzman’s wrong about the Internet’s past. But he’s certainly right about what a mandated net neutrality requirement would be. It would certainly be a “complete step backward for the Internet” — back to the time when we were world leaders in Internet penetration, and competition kept prices low and services high. Today, in the world where the duopoly increasingly talks about returning us to the world where innovation is as the network owners says, broadband in the US sucks. We are somewhere between 12th and 19th in the world, depending upon whose scale you use. As the Wall Street Journal reported two months ago, broadband in the US is “slow and expensive.” Verizon’s entry-level broadband is $14.95 for 786 kbs. That about $20 per megabit. In FRANCE, for $36/m, you get 20 megabits/s — or about $1.80 per megabit.

How did France get it so good? By following the rules the US passed in 1996, but that telecoms never really followed (and cable companies didn’t have to follow): “strict unbundling.” That’s the same in Japan — fierce competition induced by “heavy handed” regulation producing a faster, cheaper Internet. Now of course, no one is pushing “open access” anymore. Net neutrality is a thin and light substitute for the strategy that has worked in France and Japan. But it is regulation, no doubt.

So while it is true that we have had both:

(a) common carrier like regulation applied to the Internet, and
(b) basically no effective regulation applied to the Internet

and it is true that we have had both:

(c) fast, fierce competition to provide Internet service and
(d) just about the worst broadband service of the developed world

it is not true that we had (c) when we had (b).

We had (c) when we had (a), and we have (d) now that we have (b).

But in the world where the President has the inherent authority to wiretap telephones, who would be surprised if facts didn’t matter much.

Broadband is infrastructure — like highways, if not railroads. If you rely upon “markets” alone to provide infrastructure, you’ll get less of it, and at a higher price. (See, e.g., the United States, today.)

]]>
http://www.lessig.org/2006/01/the-fiction-zone-that-dc-has-b/feed/ 19
Is there a Canadian Abramoff of copyright? http://www.lessig.org/2006/01/is-there-a-canadian-abramoff-o/ http://www.lessig.org/2006/01/is-there-a-canadian-abramoff-o/#comments Wed, 04 Jan 2006 13:31:46 +0000 http://lessig.org/blog/2006/01/is_there_a_canadian_abramoff_o.html details the emerging furor about lobbying around copyright in Canada.]]> Michael Geist details the emerging furor about lobbying around copyright in Canada.

]]>
http://www.lessig.org/2006/01/is-there-a-canadian-abramoff-o/feed/ 2
here they go again http://www.lessig.org/2005/09/here-they-go-again/ http://www.lessig.org/2005/09/here-they-go-again/#comments Tue, 27 Sep 2005 12:33:31 +0000 http://lessig.org/blog/2005/09/here_they_go_again.html nails it. CPTech has an action page. So too does the EFF.]]> WIPO’s latest destructive regulation: The Broadcasting and Webcasting Treaty. Jamie Boyle nails it.

CPTech has an action page. So too does the EFF.

]]>
http://www.lessig.org/2005/09/here-they-go-again/feed/ 7
the costs of IP http://www.lessig.org/2005/07/the-costs-of-ip/ http://www.lessig.org/2005/07/the-costs-of-ip/#comments Mon, 18 Jul 2005 07:40:32 +0000 http://lessig.org/blog/2005/07/the_costs_of_ip.html depressing story about the costs of funding drug research the way we currently do. For more info see the author's website.]]> This is an extremely depressing story about the costs of funding drug research the way we currently do. For more info see the author’s website.

]]>
http://www.lessig.org/2005/07/the-costs-of-ip/feed/ 1
no linking down under http://www.lessig.org/2005/07/no-linking-down-under/ http://www.lessig.org/2005/07/no-linking-down-under/#comments Mon, 18 Jul 2005 07:38:49 +0000 http://lessig.org/blog/2005/07/no_linking_down_under.html finding liability for linking to copyright-infringing mp3s.]]> An Australian Court finding liability for linking to copyright-infringing mp3s.

]]>
http://www.lessig.org/2005/07/no-linking-down-under/feed/ 0
is the public domain illegal? http://www.lessig.org/2005/07/is-the-public-domain-illegal/ http://www.lessig.org/2005/07/is-the-public-domain-illegal/#comments Tue, 12 Jul 2005 14:11:44 +0000 http://lessig.org/blog/2005/07/is_the_public_domain_illegal.html attacked by UK record companies for giving away public domain recordings of Beethoven. According to the record companies, such offers are "unfair competition." (Thanks, Wallace). Corrected -- sorry for the confusion.]]> The BBC is being attacked by UK record companies for giving away public domain recordings of Beethoven. According to the record companies, such offers are “unfair competition.” (Thanks, Wallace). Corrected — sorry for the confusion.

]]>
http://www.lessig.org/2005/07/is-the-public-domain-illegal/feed/ 29
dark news about the archive http://www.lessig.org/2005/07/dark-news-about-the-archive/ http://www.lessig.org/2005/07/dark-news-about-the-archive/#comments Tue, 12 Jul 2005 09:18:03 +0000 http://lessig.org/blog/2005/07/dark_news_about_the_archive.html account about a "a horrific DMCA et al. suit filed against the Internet Archive."]]> Bill Patry has a very depressing account about a “a horrific DMCA et al. suit filed against the Internet Archive.”

]]>
http://www.lessig.org/2005/07/dark-news-about-the-archive/feed/ 10
got a letter from Bruce Lehman http://www.lessig.org/2005/05/got-a-letter-from-bruce-lehman/ http://www.lessig.org/2005/05/got-a-letter-from-bruce-lehman/#comments Thu, 19 May 2005 05:44:55 +0000 http://lessig.org/blog/2005/05/got_a_letter_from_bruce_lehman.html criticized him for his claim that I "seem[] to believe you can have a post-industrial economy without any copyrights." Anyway, Bruce's email (and to be clear, it was sent not just to me, but to me as a "IIPI Supporter" (which has as much connection to the truth as his statement above)) was proud to announce a new section on the IIPI website called a "Discussion Forum." The discussion forum was inspired by the "debate surrounding the European Union�s (EU) proposed Directive on Computer Implemented Inventions (CII)." As Bruce writes, "It is important to remember that the patentability of computer implemented inventions, or lack there of, will have a profound effect on European industry and competitiveness." Absolutely right, which is why is it so good that the IIPI has opened a discussion forum on their site so people can contribute to the "discussion" about IIPI's strong support for this software patent initiative. I encourage all to answer Bruce's call: You can find the "CII Discussion Forum" here. And be sure to spread the word!]]> I got an email from Bruce Lehman, which was very big of him after I criticized him for his claim that I “seem[] to believe you can have a post-industrial economy without any copyrights.”

Anyway, Bruce’s email (and to be clear, it was sent not just to me, but to me as a “IIPI Supporter” (which has as much connection to the truth as his statement above)) was proud to announce a new section on the IIPI website called a “Discussion Forum.”

The discussion forum was inspired by the “debate surrounding the European Union�s (EU) proposed Directive on Computer Implemented Inventions (CII).” As Bruce writes, “It is important to remember that the patentability of computer implemented inventions, or lack there of, will have a profound effect on European industry and competitiveness.” Absolutely right, which is why is it so good that the IIPI has opened a discussion forum on their site so people can contribute to the “discussion” about IIPI’s strong support for this software patent initiative.

I encourage all to answer Bruce’s call: You can find the “CII Discussion Forum” here. And be sure to spread the word!

]]>
http://www.lessig.org/2005/05/got-a-letter-from-bruce-lehman/feed/ 64
PFF: Right (as in correct) they are http://www.lessig.org/2005/05/pff-right-as-in-correct-they-a/ http://www.lessig.org/2005/05/pff-right-as-in-correct-they-a/#comments Sun, 15 May 2005 08:21:02 +0000 http://lessig.org/blog/2005/05/pff_right_as_in_correct_they_a.html called (rightly) for Supreme Court review of the "obviousness" standard in patent law.]]> The “Progress” and “Freedom” Foundation has called (rightly) for Supreme Court review of the “obviousness” standard in patent law.

]]>
http://www.lessig.org/2005/05/pff-right-as-in-correct-they-a/feed/ 4
the “balance” that is WIPO http://www.lessig.org/2005/03/the-balance-that-is-wipo/ http://www.lessig.org/2005/03/the-balance-that-is-wipo/#comments Thu, 10 Mar 2005 21:20:55 +0000 http://lessig.org/blog/2005/03/the_balance_that_is_wipo.html wipo_dev_agenda_2.gif More from EFF. You can also add your name to a petition.]]>
wipo_dev_agenda_2.gif

More from EFF.

You can also add your name to a petition.

]]>
http://www.lessig.org/2005/03/the-balance-that-is-wipo/feed/ 16
the “democracy” that is Europe http://www.lessig.org/2005/03/the-democracy-that-is-europe/ http://www.lessig.org/2005/03/the-democracy-that-is-europe/#comments Mon, 07 Mar 2005 14:54:26 +0000 http://lessig.org/blog/2005/03/the_democracy_that_is_europe.html has rejected software patents for Europe, and despite the fact that there is not a qualified majority of member states supporting it, the EU Council has now endorsed their draft of the "Directive on the Patentability of Computer-Implemented Inventions." This struggle continues to astonish me. There's no good economic evidence that software patents do more good than harm. That's the reason the US should reconsider its software patent policy. But why Europe would voluntarily adopt a policy that will only burden its software developers and only benefit US interests is beyond me. They call it a "democracy" that they're building in Europe. I don't see it. Instead, they have created a government of bureaucrats, more easily captured by special interests than anything in the US.]]> So despite the fact that the EU Parliament has rejected software patents for Europe, and despite the fact that there is not a qualified majority of member states supporting it, the EU Council has now endorsed their draft of the “Directive on the Patentability of Computer-Implemented Inventions.”

This struggle continues to astonish me. There’s no good economic evidence that software patents do more good than harm. That’s the reason the US should reconsider its software patent policy.

But why Europe would voluntarily adopt a policy that will only burden its software developers and only benefit US interests is beyond me.

They call it a “democracy” that they’re building in Europe. I don’t see it. Instead, they have created a government of bureaucrats, more easily captured by special interests than anything in the US.

]]>
http://www.lessig.org/2005/03/the-democracy-that-is-europe/feed/ 33