May 19, 2009  ·  Lessig

The world of American copyright scholars is very familiar with the poetic passage of Jefferson’s, written in a letter:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.

Thomas Jefferson letter to Isaac Mcpherson, August 13, 1813, reprinted in H. A. Washington, ed., Writings of Thomas Jefferson 1790-1826, vol. 6 (Washington, D. C: Taylor & Maury, 1854), 180-81; quoted in Graham v. John Deere Company of Kansas, 383 U. S. 1, 8-9n.2 (1966).

David Ellerman writes to point to an earlier version of the same point, this one penned by Augustine. As Augustine wrote:

The words I am uttering penetrate your senses, so that every hearer holds them, yet withholds them from no other. Not held, the words could not inform. Withheld, no other could share them. Though my talk is, admittedly, broken up into words and syllables, yet you do not take in this portion or that, as when picking at your food. All of you hear all of it, though each takes all individually. I have no worry that, by giving all to one, the others are deprived. I hope, instead, that everyone will consume everything; so that, denying no other ear or mind, you take all to yourselves, yet leave all to all others. But for individual failures of memory, everyone who came to hear what I say can take it all off, each on one’s separate way.

Augustine Sermon; quoted in Scan Globally, Reinvent Locally: Knowledge Infrastructure and the Localization of Knowledge.” In:  Joseph Stiglitz and the World Bank: The Rebel Within. Chang, Ha-Joon (Ed.),London: Anthem, 2001, pp. 194-219, quoting Wills, Garry 1999. Saint Augustine. New York: Viking, p. 145.

Ellerman is a researcher who had worked for Stiglitz at the World Bank. Thanks to him, Augustine is the new Jefferson.

April 30, 2009  ·  Lessig

As you may have read me tweet, the organization that hosted me for this talk:

Received a notice that Warner Music had objected to its being posted on copyright grounds. Apparently, YouTube’s content-ID algorithm had found music in the video that they claimed ownership to. The organization is apparently responding by disputing the claim. I’ll report back when I hear more.

Meanwhile, Keith Irwin (site) has kindly gone through the talk and identified all the music that is used in the talk. All of that use is, imho, fair use. But here’s the list. Thanks to Keith for the work:

Danger Mouse – The Grey Album
DJ Mystik – Inspector Gadget Techno remix (no idea what record label)
The Muppets – Mah Na Mah Na (Muppets Holding Company <- Disney)
Diana Ross and Lionel Richie – Endless Love (Motown <- Universal)
DJ Unk – 2 Step (Koch Records)
Soulja Boy Tell ‘Em – Crank Dat Soulja Boy (Stacks On Deck <- Interscope <- Universal)
Girl Talk (IllegalArt)
will.i.am – Yes We Can (not released by a label)
Kutiman-Thru-You – Mother of all Funk Chords (not released by a label)

UPDATE: Apparently the protest filed by the uploader to the block was successful. This was the segment that was blocked. We’ll see if it sticks.

UPDATE II: I now have received the text of the block on YouTube. It said: “Your video, Part 2: Lawrence Lessig – Getting a Network the World Needs at OFC/NFOEC 2009, may have audio content from Mahna Mahna by The Muppets featuring Mahna Mahna & The Two Snowths that is owned or licensed by WMG.”

April 6, 2009  ·  Lessig

Fred von Lohmann has a fantastic essay on the complexity in knowing whether the President’s gift to the Queen violated the law.

Does anyone doubt it is time to begin a formal and serious discussion about how best to craft a copyright law for the 21st century? Does anyone think such a law should yield such ambiguity to such a simple question?

December 20, 2008  ·  Lessig

According to the Wall Street Journal, the RIAA has declared peace in the “copyright wars,” and will stop its suits against individual fileshares. This is important progress.

Above, the latest (and among the last) remixes of this story about Remix, emphasizing especially the call for peace, now.

September 5, 2007  ·  Lessig

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

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

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

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

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

February 25, 2005  ·  Lessig

I dumped the following into the veins of the email system, one to each person who had signed a petition asking for reform of the copyright system.

Sorry about the intrusion, but an important opportunity has come up for you to have a positive impact on the direction of copyright law and I wanted to let you know about it directly. Thanks to some prodding by a couple of great US Senators, the copyright office is currently considering whether to recommend changes to copyright law that will make it easier and cheaper for you to use “orphaned works” — works that remain under copyright but whose “owner” can’t be found. As many of you have written me, this is a real problem that affects thousands of innovative people every year. But the copyright office still needs some convincing.

To convince them, we need your help. If you have a relevant story, or a perspective that might help the Copyright Office evaluate this issue, I would be grateful if you took just a few minutes to write an email telling them your story. The most valuable submissions will make clear the practical burden the existing system creates. (One of my favorite stories is about a copy-shop’s refusal to enlarge a 60 year old photo from an elementary school year book for a eulogy because the copyright owner couldn’t be found.) Describe instances where you wanted to use a work, but couldn’t find the owner to ask permission. Explain how that impacted your ability to create. Or pass this email on to someone who you know might have a useful story to add.

The Copyright Office is already overworked and understaffed, so I’m not asking that you stuff their inbox with demands for action, or anything like that. They are not Congress. They are not even the FCC. Their role here is as fact-finder, so “just the facts, ma’am.” (Oops, do I need permission to use that?)

Everything you need to do this is online at http://eldred.cc. We’ve explained exactly what the copyright office is asking for, how and where to submit your email, and provided some examples of stories we’ve heard from others about how their creativity has been stalled when they’ve tried to use orphan works. If you have questions, there’s a contact email there for people who can help you out.

In spite of my usual pessimism, I think we have a real opportunity here to move the law in a positive direction. Please help us “promote the Progress of Science” (and that text is in the public domain), by
showing the Copyright Office where unnecessary regulation hampers progress.

Stupidly, I did the sending myself, and so stupidly (but predictably), I failed to click the signature box, so it didn’t have the requisite “opt out link.” That was a mistake, and I apologize for it, but the missive brought a bunch of angry emails about my “spamming” them.

Those complaints evince the unfortunate shift in meaning of the term “spam.” As my post does not ask for money or propose a commercial transaction, it is non-commercial. It is therefore bulk email, but not, in my view, spam. More importantly, while people should do what I stupidly didn’t do (include an opt-out option), and people should not do what I’ve not done (abuse a list — this is the second time in almost two years that I’ve used the list), we should not be stigmatizing the use of bulk mail for political or policy related purposes.