December 2, 2008  ·  Lessig

As I indicated yesterday, I was very encouraged by the decision by the Obama transition team to freely license change.gov (not actually a .gov entity, so not exempt from the rights of copyright).

But over the weekend, a bunch of us got together to begin (actually, continue) the process of framing “open government principles.” The first round is described at Politico by Ben Smith.

You can read the rationale for the principles at open-government.us. Put briefly, the three principles are:

1. No Legal Barrier to Sharing (law (copyright law) should not block sharing);

2. No Technological Barrier to Sharing (code (limitations on downloads, for example) should not block sharing;

3. Free competition (no alliances should favor one commercial entity over another, or commercial over noncommercial entities).

Some have framed these as “demands” made of the administration. That’s like saying the mouse can make demands of the lion. We’re not making demands; we’re describing good policy. Or at least, good policy as we see it.

December 1, 2008  ·  Lessig

change.gov.jpg

Consistent with the values of any “open government,” and with his strong leadership on “free debates” from the very start, the Obama team has modified the copyright notice on change.gov to embrace the freest CC license.

This is great news about a subject that’s harder than it seems. One might well ask why is this an issue at all? The one thing copyright law is pretty good at is exempting works of the government from copyright protection. Why should the published work of a transition, or a President, be any different?

I don’t think it should be, but I get why this is a hard issue. Whether or not one was free to republish works printed by the GPO, the freedom that digital technologies enables here is certainly enough to give one pause. I’m fine with the pause; I’d be happy to defend the freedom explicitly. But it is understandable that this is something that any administration would have to think through.

I’m glad the thought in this administration led to the right conclusion, so quickly, and in the midst of so much else going on.

November 6, 2008  ·  Lessig

So a new President means (the chance of a) new Chairman of the FCC. Before he passes, it is timely to begin to reflect a bit upon the chairmanship of the current chairman, Kevin Martin.

A clue that this is an interesting and important chairman is the fact that he’s an equal opportunity anger-er — the left has loved and hated him, the right has loved and hated him. I’m an increasingly strong admirer. His contribution to sensible thinking about infrastructures was established with his taking the lead in imposing network-neutrality-like rules on Comcast. But it is the unanimous decision freeing “white space” spectrum that will, I think, ultimately be the most important. The decision is not only right. It shows a liberation from a rigid and flawed understanding of the best way to maximize the economic value of “spectrum.” This clear thinking needs to expand beyond these bands. But it is an important start.

October 29, 2008  ·  Lessig

As many have, I’ve been eager to understand the terms of the settlement in the AAP/Authors Guild v. Google case (Google Summary, Actual Settlement). After spending some time studying it, here are my thoughts. (4TR: I was not part of any of these settlement negotiations so all this was news to me).

IMHO, this is a good deal that could be the basis for something really fantastic. The Authors Guild and the American Association of Publishers have settled for terms that will assure greater access to these materials than would have been the case had Google prevailed. Under the agreement, 20% of any work not opting out will be available freely; full access can be purchased for a fee. That secures more access for this class of out-of-print but presumptively-under-copyright works than Google was initially proposing. And as this constitutes up to 75% of the books in the libraries to be scanned, that is hugely important and good. That’s good news for Google, and the AAP/Authors Guild, and the public. (My favorable views about the AAP at least are not, of course, reciprocated.)

It is also good news that the settlement does not presume to answer the question about what “fair use” would have allowed. The AAP/AG are clear that they still don’t agree with Google’s views about “fair use.” But this agreement gives the public (and authors) more than what “fair use” would have permitted. That leaves “fair use” as it is, and gives the spread of knowledge more that it would have had.

The hard issue here will be in the details (surprise, surprise). The agreement calls for the creation of a registry to be operated by a nonprofit corporation. That corporation will be governed by a board comprised of publishers and “authors” (meaning authors participating in the law suit). That corporation will administer the payments to authors and publishers that flow from the agreement. It will also administer a registry that will make it easier for works to be identified, and owners located.

The hard question for the registry is how far they will go to support the range of business models that authors and publishers might have. E.g., Yale Press “Books Unbound” and Bloomsbury Academic both have Creative Commons licensed authors. Will the registry enable that fact to be recognized? Indeed, though the comment was made by someone from the plaintiffs’ side that it would be “perverse” for authors to choose free licensing, it is perfectly plausible that an author would choose to make his or her work available freely electronically, but contract with one commercial publisher to deal with selling the physical book, or licensing rights commercially. That, again, is the Bloomsbury Academic business model. Ideally, this non-profit should encourage the widest range of rights-respecting business models. One clear signal about what kind of organization this is will come from this.

But key to the good in the agreement is that we don’t have to trust the nonprofit to do good here. Google has committed both to making the data it can control (not private data about telephone numbers and contact info, but public data about copyright registration, terms, etc.) nonexclusively available, and more importantly, downloadable by anyone who wants to build a competing and complementary database. It has also reserved important safe-harbors for its incredibly valuable public domain collection (which includes books people get free access to, and can download for free).

Here, too, however, there is an important challenge for Google. It has provided important value by making available works that have no rights attached to it. But it should do more to make available works that have some rights attached to it. Critical for evaluating whether the long term interest of Google is GOOd or GOOey, Google needs to build into its architecture assets that are licensed freely, or under noncommercial terms, to complement the assets that it claims are free for “noncommercial” download (namely, the public domain works it has). Acting to clearly support the non-proprietary movement as well as the proprietary is an important way for it to show that it stands in the middle, and that it, with the AAP/Authors Guild, have now done some real good.

The biggest loser in this whole battle is the Orphan Works legislation. If anyone needed evidence to demonstrate that it is WAY TOO EARLY for Congress to be passing massive new bureaucratic overlays to copyright to deal with the important problem of “orphan works,” this is the evidence. Let’s let this private alternative develop, while Congress puts away its billion-factor balancing tests for regulating access to “orphan works.” For earlier rants against the Orphan Works bill, see:

Copyright Policy: Orphan Works Reform

Internet Law: 2.5 done (round II on Orphans)

And here’s a video I did years ago against the original Orphan Works proposals.

And a video I did long ago about whether Google’s use was “fair use.”

October 18, 2008  ·  Lessig

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TransparentDemocracy.org has gone beta. This very cool sites helps you sift through election recommendations as well as corporate ballot measures. The gist is this: you pick your recommenders, and you can see how they rank candidates or ballot measures. The site will eventually be a platform for any set of recommenders, so its aim is to become as general as possible. But especially for us California voters (with pages and pages of incomprehensible ballot measures) this will be an enormous help. In the extended entry below, I include an email from the creator of the site, Kim Cranston, explaining a bit more.

Hi Larry,

I’m writing to let you know that we have launched the public beta version of TransparentDemocracy, and to thank you for all you’ve done to support our efforts – I deeply appreciate it.

I look forward to hearing your thoughts on the site and want to encourage you to forward this email to anyone who you think might find TransparentDemocracy of interest, especially for educating voters about statewide contests this November or shareholders in corporate proxy contests in 2009.

The Ballot Measure Voter Turnout project is the first application of a platform built to increase trust, communication, accountability, and responsiveness in our democratic institutions that are having a difficult time addressing the major challenges we face (a second application – the Corporate Shareholder Proxy Ballot Guide – is discussed below).

Millions of first time and other voters who will vote for our next president this November 4 will not vote on ballot measures and in other important contests if they are unsure about how to vote (in the general election in California in 2004, over 1 Million – nearly 10% – fewer votes were cast for ballot measures than in the presidential contest). This election, there are 153 ballot measures on 35 statewide ballots, with voters deciding measures concerning the economy, the environment, alternative energy, constitutional and civil rights, reproductive rights, prison reform, and other important issues.

TransparentDemocracy’s Ballot Measure Voter Turnout Project will increase informed voting and turnout on ballot measures and other contests by letting voters who are unsure about how to vote see how people and organizations they trust recommend they vote.

To best understand how TransparentDemocracy works:
1. Go to: http://www.transparentdemocracy.org
2. Find the California Ballot.
3. Scroll down to a Ballot Measure, e.g., Proposition 8.
4. Check the boxes next to the people or organizations you trust (or want to see the recommendations of) in the “Select Your Sources” tool to the left of the ballot.
5. For one of the Propositions, e.g., Proposition 8, select “Show all # Sources For This Contest” (just below “Contest Details”).
6. Scroll over one of the listed Sources to see if it published a statement supporting its position.
7. Explore “Contest Details”.
8. Mark and print your ballot.

This is a beta release, a work in progress – like all of our democratic institutions – so you’ll probably find a few bugs (please use the alert system to let us know what you find).

Here is a bit more information about TransparentDemocracy:

Our “sample” ballot-centric, open “Source” system allows any organization or individual to publish their recommendations and supporting information, which voters can then (1) filter a variety of ways and rate, and (2) use to make their own recommendations to share with friends. Sources can also display their recommendations on their own websites or anywhere on the web.

We are currently “reporting” the positions of some sources on ballot measures in order to “seed” the Source system; we have already done this for California and several other states, and are quickly doing this with the remaining states with ballot measures.

The second application of the platform – the Corporate Shareholder Proxy Ballot Guide – will cover all proxies with contested shareholder resolutions in 2009 (we’ve already published 40 proxy ballots that include 98 shareholder proposals from the 2008 proxy season, which we’ve relabeled as “preliminary” proxy ballots for 2009 as many of them will be voted on again next year).

To get a sense of how the Proxy Guide works:
1. Find the proxy for Exxon Mobil.
2. Scroll down to one of the Shareholder Proposals, e.g., “Proposal 17 Climate Change and Technology Report”.
3. For the selected Proposal, e.g., “Proposal 17”, Select “Show all 2 Sources This Contest”.
4. Scroll over one of the listed Sources.

The Corporate Shareholder Proxy Ballot Guide will provide significant value by:
1. Allowing proponents of shareholder resolutions to publish anything they wish for shareholder consideration.
2. Allowing organizations and individuals who are not the proponents of a shareholder resolution to (a) publish their recommendations (and supporting information) in TransparentDemocracy and (b) display their recommendation on their own website.
3. Making it much easier for shareholders to find recommendations from organizations and individuals they trust so they can better voter their values.

Please let me know of any ideas you have about this, and please forward this email to anyone who you think might provide support to TransparentDemocracy or use it to educate voters about statewide contests this November or shareholders in corporate proxy contests in 2009.

Thank you again for all of your support.