Lessig » good 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 Blow up the FCC (or so was this titled when I submitted it in October) http://www.lessig.org/2008/12/blow-up-the-fcc-or-so-was-this/ http://www.lessig.org/2008/12/blow-up-the-fcc-or-so-was-this/#comments Wed, 24 Dec 2008 02:20:32 +0000 http://lessig.org/blog/2008/12/blow_up_the_fcc_or_so_was_this.html
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A nice welcome home present (or early birthday present) http://www.lessig.org/2008/06/a-nice-welcome-home-present-or/ http://www.lessig.org/2008/06/a-nice-welcome-home-present-or/#comments Mon, 02 Jun 2008 22:57:06 +0000 http://lessig.org/blog/2008/06/a_nice_welcome_home_present_or.html Fair Use Project) got word of another great success today. We're representing the filmmakers of Ben Stein's Expelled. The film is an attack on the culture that forbids "intelligent design" from being considered seriously. (I'm a member of that culture.) The film uses a 15 second snippet of John Lennon's "Imagine." Yoko Ono was not happy with the use, and sued. In a decision issued this morning, Judge Stein denied Ono's motion for an injunction against the film, finding we were likely to prevail on our fair use defense. To borrow a bit more:
"Imagine all the people Sharing all [at least some of] the world[s]."
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We (Stanford’s Fair Use Project) got word of another great success today. We’re representing the filmmakers of Ben Stein’s Expelled. The film is an attack on the culture that forbids “intelligent design” from being considered seriously. (I’m a member of that culture.) The film uses a 15 second snippet of John Lennon’s “Imagine.” Yoko Ono was not happy with the use, and sued. In a decision issued this morning, Judge Stein denied Ono’s motion for an injunction against the film, finding we were likely to prevail on our fair use defense.

To borrow a bit more:

“Imagine all the people
Sharing all [at least some of] the world[s].”

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Very sweet victory: Shloss http://www.lessig.org/2007/02/very-sweet-victory-shloss/ http://www.lessig.org/2007/02/very-sweet-victory-shloss/#comments Sun, 11 Feb 2007 16:35:24 +0000 http://lessig.org/blog/2007/02/very_sweet_victory_shloss.html Shloss v. Sweeney, the fair use challenge brought by the Stanford Center for Internet and Society's "Fair Use Project" last June, on behalf of Carol Shloss, a Joyce scholar at Stanford. The case challenges the abuse of copyright by the Joyce Estate, interfering with the academic work of Joycean scholars. (The story of that abuse is recounted in this fantastic piece in the New Yorker.) On Friday, we passed an important hurdle. The district court has denied the defendant's motion to dismiss. The decision was quick, and is very well and completely reasoned. Judge Ware did permit the estate to strike a paragraph from the complaint (we were probably getting wordy in any case). But every element of our complaint remains -- including, importantly, the copyright misuse claim. Most of the work in the case has been handled by Stanford CIS Fellow David Olson. Since joining CIS to head the "Fair Use Project," Tony Falzone has also become a key player in the case. Tony argued the case before Judge Ware. We've also had great support from a Joyce scholar, and lawyer with Howard Rice, Robert Spoo, as well as the firm of Keker & Van Nest. These attorneys, and the others at CIS (including many extraordinary students) deserve a great deal of thanks. It is rare for the press to talk about issues in the copyright beyond "piracy." The New Yorker piece is a nice exception. My hope is more cases like this will lead people to recognize the many more issues here beyond whether people "take" music for free.]]> You’ll recall Shloss v. Sweeney, the fair use challenge brought by the Stanford Center for Internet and Society’s “Fair Use Project” last June, on behalf of Carol Shloss, a Joyce scholar at Stanford. The case challenges the abuse of copyright by the Joyce Estate, interfering with the academic work of Joycean scholars. (The story of that abuse is recounted in this fantastic piece in the New Yorker.)

On Friday, we passed an important hurdle. The district court has denied the defendant’s motion to dismiss. The decision was quick, and is very well and completely reasoned. Judge Ware did permit the estate to strike a paragraph from the complaint (we were probably getting wordy in any case). But every element of our complaint remains — including, importantly, the copyright misuse claim.

Most of the work in the case has been handled by Stanford CIS Fellow David Olson. Since joining CIS to head the “Fair Use Project,” Tony Falzone has also become a key player in the case. Tony argued the case before Judge Ware. We’ve also had great support from a Joyce scholar, and lawyer with Howard Rice, Robert Spoo, as well as the firm of Keker & Van Nest. These attorneys, and the others at CIS (including many extraordinary students) deserve a great deal of thanks.

It is rare for the press to talk about issues in the copyright beyond “piracy.” The New Yorker piece is a nice exception. My hope is more cases like this will lead people to recognize the many more issues here beyond whether people “take” music for free.

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Copyright Policy: Orphan Works Reform http://www.lessig.org/2007/02/copyright-policy-orphan-works/ http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comments Thu, 01 Feb 2007 08:34:19 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html Chart.001.png For almost a decade now, many of us have been pushing for copyright reform that would address the problems of orphan works. That was a key motivation behind the attack on the Sonny Bono Copyright Term Extension Act. It was the focus of my op-ed in the NY Times after we lost in that attack. That op-ed proposed one system for dealing with orphan works -- register your copyright after 50 years and pay $1; if you don't the work passes into the public domain. That proposal was the basis of Congresswoman Lofgren's "Public Domain Enhancement Act," which was partly responsible for Senators Hatch and Leahy asking the Copyright Office to study the problem of "orphan works." The Copyright Office's report is brilliant. Its proposal is less brilliant. Its essence is that a work is deemed an "orphan" if you can't discover the copyright owner after a "reasonably diligent search." If the work is deemed an orphan, then the copyright owner's rights are curtailed. I think this both goes too far, and not far enough.
Too far: By applying the remedy to all works immediately, the work imposes an unfair burden on many existing copyright holders -- who have followed a rule which since 1978 has said, don't worry about such details; it puts an especially unfair burden on foreign and unpublished copyright holders. In my view, photographers and other existing copyright holders are right to be outraged at the proposal. Hiding under the cover of "reasonably diligent search," much of their work will be -- unfairly -- threatened.

Not far enough: The trigger to the Copyright Office's Orphan Works Remedy is whether a copyright owner can be found with a "reasonably diligent search." That standard is just mush. The report outlines six factors to be considered in determining whether a search is "reasonably diligent." The effect of this complexity is simply make-work for lawyers. Libraries and archives will be unfairly burdened. Users won't be able to achieve any real security.

The alternative I propose is a kind of copyright maintenance procedure (like patent maintenance). It differs from the Copyright Office's proposal in three critical ways:

First: It applies just to old works, not to new works. For works after enactment, copyright owners get a 14 year grace period where they need not worry at all about any orphan work requirement. For work published between 1978 and today, there's no orphan work requirement until 2021. And for work published before 1978 (in a time when formalities were the norm), there is no requirement until 2012.

Second: It applies to published "United States works" only -- not to foreign works or unpublished work.

Third: The requirement it imposes after the 14/5 year delay is registration. But not registration with the copyright office; instead, registration with a private registrar approved by the copyright office. No government run registries here. Instead, something more like a DNS for copyright.

This chart at the top summarizes the differences. You can download a one-page description of the proposal here. You can download or stream the (35 minute) presentation here, or watch it on Google Video below.

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For almost a decade now, many of us have been pushing for copyright reform that would address the problems of orphan works. That was a key motivation behind the attack on the Sonny Bono Copyright Term Extension Act. It was the focus of my op-ed in the NY Times after we lost in that attack. That op-ed proposed one system for dealing with orphan works — register your copyright after 50 years and pay $1; if you don’t the work passes into the public domain. That proposal was the basis of Congresswoman Lofgren’s “Public Domain Enhancement Act,” which was partly responsible for Senators Hatch and Leahy asking the Copyright Office to study the problem of “orphan works.”

The Copyright Office’s report is brilliant. Its proposal is less brilliant. Its essence is that a work is deemed an “orphan” if you can’t discover the copyright owner after a “reasonably diligent search.” If the work is deemed an orphan, then the copyright owner’s rights are curtailed.

I think this both goes too far, and not far enough.

Too far: By applying the remedy to all works immediately, the work imposes an unfair burden on many existing copyright holders — who have followed a rule which since 1978 has said, don’t worry about such details; it puts an especially unfair burden on foreign and unpublished copyright holders. In my view, photographers and other existing copyright holders are right to be outraged at the proposal. Hiding under the cover of “reasonably diligent search,” much of their work will be — unfairly — threatened.

Not far enough: The trigger to the Copyright Office’s Orphan Works Remedy is whether a copyright owner can be found with a “reasonably diligent search.” That standard is just mush. The report outlines six factors to be considered in determining whether a search is “reasonably diligent.” The effect of this complexity is simply make-work for lawyers. Libraries and archives will be unfairly burdened. Users won’t be able to achieve any real security.

The alternative I propose is a kind of copyright maintenance procedure (like patent maintenance). It differs from the Copyright Office’s proposal in three critical ways:

First: It applies just to old works, not to new works. For works after enactment, copyright owners get a 14 year grace period where they need not worry at all about any orphan work requirement. For work published between 1978 and today, there’s no orphan work requirement until 2021. And for work published before 1978 (in a time when formalities were the norm), there is no requirement until 2012.

Second: It applies to published “United States works” only — not to foreign works or unpublished work.

Third: The requirement it imposes after the 14/5 year delay is registration. But not registration with the copyright office; instead, registration with a private registrar approved by the copyright office. No government run registries here. Instead, something more like a DNS for copyright.

This chart at the top summarizes the differences.

You can download a one-page description of the proposal here.

You can download or stream the (35 minute) presentation here, or watch it on Google Video below.

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Internet Policy: What Congress Should Do http://www.lessig.org/2007/02/internet-policy-what-congress/ http://www.lessig.org/2007/02/internet-policy-what-congress/#comments Thu, 01 Feb 2007 08:16:37 +0000 http://lessig.org/blog/2007/02/internet_policy_what_congress.html

Copyright: Orphan Works: Orphan Works legislation is critical. Nonetheless, I strongly oppose the Copyright Office's "Orphan Works Proposal." I think it is extraordinarily unfair to current copyright owners, and insanely inefficient. My proposal applies an "Orphan Works Maintenance Requirement" to older works only; the requirement is a form of registration.

Copyright: Remix Culture: Congress should carve a robust exemption to the law for non-commercial remix. Commercial use of such remixes should be regulated by a baseline statutory license.

Network Neutrality: No surprise: I support Network Neutrality legislation. Unfortunately, too many of the reigning proposals are, imho, radically too difficult to enforce. I'll propose a much simpler rule to enforce that would achieve the legitimate objectives of NN.

Spam: The email system is broken. A bazaar of private remedies to deal with spam now clog the system to defeat many of its original objectives. I'll propose a modified version of an earlier idea to deal with this problem -- a problem that costs the American public many times the total profits of the recording industry, but has gotten but a fraction of Congress's attention.

Harmful to Minors Material: There's a simple and minimally burdensome way Congress could protect kids online from material deemed "harmful to minors." Not perfectly, but certainly better than the current regime. And without constitutional risk.

Deregulating Spectrum: Crude radio technology used to make regulating spectrum necessary. Smart radio technology makes it -- in many cases at least -- unnecessary. We should be pushing to deregulate where technology makes that possible. I hope these presentations will be no more than 15 minutes long. The first presentation will be posted later today. Unfortunately, it is about 35 minutes long.]]> Over the next couple months, I’m going to try to put together short presentations outlining arguments for six Internet-related proposals that I believe Congress should enact over the next year. The trailer-description for each follows:

Copyright: Orphan Works: Orphan Works legislation is critical. Nonetheless, I strongly oppose the Copyright Office’s “Orphan Works Proposal.” I think it is extraordinarily unfair to current copyright owners, and insanely inefficient. My proposal applies an “Orphan Works Maintenance Requirement” to older works only; the requirement is a form of registration.

Copyright: Remix Culture: Congress should carve a robust exemption to the law for non-commercial remix. Commercial use of such remixes should be regulated by a baseline statutory license.

Network Neutrality: No surprise: I support Network Neutrality legislation. Unfortunately, too many of the reigning proposals are, imho, radically too difficult to enforce. I’ll propose a much simpler rule to enforce that would achieve the legitimate objectives of NN.

Spam: The email system is broken. A bazaar of private remedies to deal with spam now clog the system to defeat many of its original objectives. I’ll propose a modified version of an earlier idea to deal with this problem — a problem that costs the American public many times the total profits of the recording industry, but has gotten but a fraction of Congress’s attention.

Harmful to Minors Material: There’s a simple and minimally burdensome way Congress could protect kids online from material deemed “harmful to minors.” Not perfectly, but certainly better than the current regime. And without constitutional risk.

Deregulating Spectrum: Crude radio technology used to make regulating spectrum necessary. Smart radio technology makes it — in many cases at least — unnecessary. We should be pushing to deregulate where technology makes that possible.

I hope these presentations will be no more than 15 minutes long. The first presentation will be posted later today. Unfortunately, it is about 35 minutes long.

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Fair Use seeks an attorney http://www.lessig.org/2007/01/fair-use-seeks-an-attorney/ http://www.lessig.org/2007/01/fair-use-seeks-an-attorney/#comments Tue, 23 Jan 2007 13:33:15 +0000 http://lessig.org/blog/2007/01/fair_use_seeks_an_attorney.html Stanford Center for Internet and Society launched a "Fair Use Project" this year. The focus of this project will be litigation to help mark (and push a bit) the boundaries of fair use. We formed this project because of a large amount of advice we were giving especially in the context of film. But the first case we filed was in defense of a scholar's ability to quote material from Joyce in an academic work. (The story is described in this New Yorker article.) The Project is led by a former partner from Bingham McCutchen, Anthony Falzone. We're now looking for another attorney to work with him. Information is available at the CIS site.]]> As you may recall, the Stanford Center for Internet and Society launched a “Fair Use Project” this year. The focus of this project will be litigation to help mark (and push a bit) the boundaries of fair use. We formed this project because of a large amount of advice we were giving especially in the context of film. But the first case we filed was in defense of a scholar’s ability to quote material from Joyce in an academic work. (The story is described in this New Yorker article.)

The Project is led by a former partner from Bingham McCutchen, Anthony Falzone. We’re now looking for another attorney to work with him. Information is available at the CIS site.

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Very important Fair Use decision http://www.lessig.org/2006/05/very-important-fair-use-decisi/ http://www.lessig.org/2006/05/very-important-fair-use-decisi/#comments Thu, 18 May 2006 13:15:45 +0000 http://lessig.org/blog/2006/05/very_important_fair_use_decisi.html Graham v. Dorling Kindersley Limited is fantastic. Could this signal general progress?]]> The Second Circuit Court of Appeals’ decision in Graham v. Dorling Kindersley Limited
is fantastic. Could this signal general progress?

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Those very sensible British http://www.lessig.org/2006/05/those-very-sensible-british/ http://www.lessig.org/2006/05/those-very-sensible-british/#comments Thu, 18 May 2006 13:00:19 +0000 http://lessig.org/blog/2006/05/those_very_sensible_british.html proposed. This is the first such proposal that I've seen a government official make. (If I'm wrong about that, please let me know.) But it is fantastic progress in the second-best world we inhabit.]]> So the British are considering extending the terms of copyrights for recordings from the current term of 50 years to 95 years — this to “harmonize” with the US, after the US extended its term to “harmonize” with Europe. Anyway, you know my views about term extensions for existing works, so I won’t repeat all that here.

But last night in the British Parliament, there was an extraordinary breakthrough in thinking about this issue. While the best rule would be that copyrights of existing works would never be extended, a second-best rule would be that, at a minimum, any extension should be limited to those copyright holders who take steps to claim that extension. And so has Mr. Don Foster now proposed.

This is the first such proposal that I’ve seen a government official make. (If I’m wrong about that, please let me know.) But it is fantastic progress in the second-best world we inhabit.

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Google Book Search: The Argument http://www.lessig.org/2006/01/google-book-search-the-argumen/ http://www.lessig.org/2006/01/google-book-search-the-argumen/#comments Sun, 15 Jan 2006 01:07:33 +0000 http://lessig.org/blog/2006/01/google_book_search_the_argumen.html So there's a corrected version of the Google Book Search video here on youTube. Very cool video sharing service, just ripe for CC licenses. The essence of the argument here builds upon the "market failure" justification for fair use: We recognize fair use where there's a prominent market failure. Here, the market failure is caused by the insanely inefficient property system copyright law is. Given that, the use Google makes is plainly "fair use." Update: This is an updated version that substitutes a photograph. I stupidly used a photo without checking the license. The substituted photo is a beautiful image by fuzzbabble on Flickr. My apologies to the very talented Andrea K. Gingerich.]]>

So there’s a corrected version of the Google Book Search video here on youTube. Very cool video sharing service, just ripe for CC licenses.

The essence of the argument here builds upon the “market failure” justification for fair use: We recognize fair use where there’s a prominent market failure. Here, the market failure is caused by the insanely inefficient property system copyright law is. Given that, the use Google makes is plainly “fair use.”

Update: This is an updated version that substitutes a photograph. I stupidly used a photo without checking the license. The substituted photo is a beautiful image by fuzzbabble on Flickr. My apologies to the very talented Andrea K. Gingerich.

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Patent progress at MSFT? http://www.lessig.org/2005/11/patent-progress-at-msft/ http://www.lessig.org/2005/11/patent-progress-at-msft/#comments Sat, 26 Nov 2005 19:45:58 +0000 http://lessig.org/blog/2005/11/patent_progress_at_msft.html decision to submit its Office Document Formats to ECMA for "open standardization." That's good news, depending, of course, on the details. But this is even better news: Microsoft has also promised that "it will not seek to enforce any of its patent claims necessary to conform to the technical specifications for the Microsoft Office 2003 XML Reference Schemas." This shows some hope to the complex of issues around patents affecting software in the land of Microsoft. Even opponents of software and business method patents will advise companies to secure them -- given others can as well. But behavior like this goes a long way to neutralizing the negative effect of such patents. No license. No agreement. Just an unequivocal promise -- at least with respect to those who don't sue Microsoft.]]> There’s been lots of interesting commentary about Microsoft’s recent decision to submit its Office Document Formats to ECMA for “open standardization.” That’s good news, depending, of course, on the details.

But this is even better news: Microsoft has also promised that “it will not seek to enforce any of its patent claims necessary to conform to the technical specifications for the Microsoft Office 2003 XML Reference Schemas.”

This shows some hope to the complex of issues around patents affecting software in the land of Microsoft. Even opponents of software and business method patents will advise companies to secure them — given others can as well. But behavior like this goes a long way to neutralizing the negative effect of such patents. No license. No agreement. Just an unequivocal promise — at least with respect to those who don’t sue Microsoft.

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bottom-up broadband on top http://www.lessig.org/2005/07/bottomup-broadband-on-top/ http://www.lessig.org/2005/07/bottomup-broadband-on-top/#comments Mon, 18 Jul 2005 04:12:46 +0000 http://lessig.org/blog/2005/07/bottomup_broadband_on_top.html earlier has passed. (Thanks, Mike!)]]> The referendum that I described earlier has passed. (Thanks, Mike!)

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patent directive goes down (again) http://www.lessig.org/2005/07/patent-directive-goes-down-aga/ http://www.lessig.org/2005/07/patent-directive-goes-down-aga/#comments Wed, 06 Jul 2005 12:54:12 +0000 http://lessig.org/blog/2005/07/patent_directive_goes_down_aga.html Senator Fiorello Cortiana reports that the Patent Directive in the EU Parliament has been defeated — 650 to 14.

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another (perhaps the last US based?) iLaw Program http://www.lessig.org/2005/05/another-perhaps-the-last-us-ba/ http://www.lessig.org/2005/05/another-perhaps-the-last-us-ba/#comments Mon, 23 May 2005 16:48:18 +0000 http://lessig.org/blog/2005/05/another_perhaps_the_last_us_ba.html Berkman Center is sponsoring its annual iLaw program in Cambridge, MA, June 22-24. The program is great fun, and you even get to live in the dorms! Registration is here. I'm hoping we move these programs overseas, exclusively. But I'm just (one of) the teachers. There are scholarships and group rates, so ask. NOTE: Reservations for rooms are required. Dorm rooms are available but you must check in with Wendy Koslow at the Berkman Center about availability.]]> So the Berkman Center is sponsoring its annual iLaw program in Cambridge, MA, June 22-24. The program is great fun, and you even get to live in the dorms! Registration is here. I’m hoping we move these programs overseas, exclusively. But I’m just (one of) the teachers. There are scholarships and group rates, so ask.

NOTE: Reservations for rooms are required. Dorm rooms are available but you must check in with Wendy Koslow at the Berkman Center about availability.

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Patry ponders the consequences of free wine http://www.lessig.org/2005/05/patry-ponders-the-consequences/ http://www.lessig.org/2005/05/patry-ponders-the-consequences/#comments Wed, 18 May 2005 17:51:34 +0000 http://lessig.org/blog/2005/05/patry_ponders_the_consequences.html blog on copyright, which has covered a range of interesting issue. He's got an interesting link to the case Kathleen Sullivan recently won in the Supreme Court, Granholm v. Heald, finding that state limits on the sale of out of state wine violated the dormant commerce clause, the 21st Amendment notwithstanding. Patry suggests a link to database legislation, which seems to me a bit of a stretch (I think his view of database legislation is correct, but not sure it follows from Granholm.) He's also got a very interesting review of the anti-bootlegging statute, informed by his experience on the Hill when these were passed.]]> William Patry has a new blog on copyright, which has covered a range of interesting issue. He’s got an interesting link to the case Kathleen Sullivan recently won in the Supreme Court, Granholm v. Heald, finding that state limits on the sale of out of state wine violated the dormant commerce clause, the 21st Amendment notwithstanding. Patry suggests a link to database legislation, which seems to me a bit of a stretch (I think his view of database legislation is correct, but not sure it follows from Granholm.) He’s also got a very interesting review of the anti-bootlegging statute, informed by his experience on the Hill when these were passed.

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And a HUGE victory for the Stanford CIS http://www.lessig.org/2005/05/and-a-huge-victory-for-the-sta/ http://www.lessig.org/2005/05/and-a-huge-victory-for-the-sta/#comments Fri, 06 May 2005 19:23:09 +0000 http://lessig.org/blog/2005/05/and_a_huge_victory_for_the_sta.html won an important case about anonymous speech. An anonymous participant in an online chat posted comments critical of Ampex and its chairman. They sued for defamation. The poster sued under the California anti-SLAPP (strategic lawsuit against public participation) statute. Ampex tried to dismiss and run away. The Court of Appeals ruled at first that there remeained anti-SLAPP jurisdiction. The District Court then refused to award fees. The Court of Appeals has now reversed the District Court and ordered fees. The case was argued by a law student. It will have an important effect in stopping the abuse of process against online critics.]]> So it’s Saturday morning here in Australia, and I’m reading my email in reverse order. First the fantastic news about PublicKnowledge. Now this: The Stanford Center for Internet and Society has won an important case about anonymous speech. An anonymous participant in an online chat posted comments critical of Ampex and its chairman. They sued for defamation. The poster sued under the California anti-SLAPP (strategic lawsuit against public participation) statute. Ampex tried to dismiss and run away. The Court of Appeals ruled at first that there remeained anti-SLAPP jurisdiction. The District Court then refused to award fees. The Court of Appeals has now reversed the District Court and ordered fees. The case was argued by a law student. It will have an important effect in stopping the abuse of process against online critics.

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A big slapdown for the FCC (and maybe another coming?) http://www.lessig.org/2005/05/a-big-slapdown-for-the-fcc-and/ http://www.lessig.org/2005/05/a-big-slapdown-for-the-fcc-and/#comments Fri, 06 May 2005 19:08:53 +0000 http://lessig.org/blog/2005/05/a_big_slapdown_for_the_fcc_and.html PublicKnowledge, has won its case challenging the FCC's Broadcast Flag regulation. The opinion is here and fantastic. PK had to pay for the lawyers to litigate this case. This is a big victory. Supporters should consider returning the favor with some support.]]> The American Library Association, with the help of PublicKnowledge, has won its case challenging the FCC’s Broadcast Flag regulation. The opinion is here and fantastic.

PK had to pay for the lawyers to litigate this case. This is a big victory. Supporters should consider returning the favor with some support.

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upcoming conference at Stanford (II) (and much sooner) http://www.lessig.org/2005/04/upcoming-conference-at-stanfor-1/ http://www.lessig.org/2005/04/upcoming-conference-at-stanfor-1/#comments Wed, 06 Apr 2005 10:31:45 +0000 http://lessig.org/blog/2005/04/upcoming_conference_at_stanfor_1.html
main_image_streets.jpg
All the coolest issues (including Nanotech), in just one day. Info. Register.]]>
main_image_streets.jpg

All the coolest issues (including Nanotech), in just one day.

Info. Register.

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upcoming conference at Stanford http://www.lessig.org/2005/04/upcoming-conference-at-stanfor/ http://www.lessig.org/2005/04/upcoming-conference-at-stanfor/#comments Wed, 06 Apr 2005 01:36:50 +0000 http://lessig.org/blog/2005/04/upcoming_conference_at_stanfor.html here. Here's their announcement.
On March 29, 2005, the U.S. Supreme Court heard arguments in two cases that together will greatly determine how government can and will regulate the Internet in the future, and the impact that the public interest will have on the development of cyberlaw over the next decade. In MGM v. Grokster, the Court will decide whether copyright holders can veto consumer electronics and computing innovations that upset the content industries' prevailing business models, even where the technology's non-infringing uses provide substantial benefits to consumers. The question is whether consumer demand for new and better products will drive technological development, or copyright owners' demand for control will retard it. In Brand X v. FCC, the Court will decide whether the FCC should retain the option to regulate cable modem services to promote open access to broadband lines, universal service and network neutrality, as it did in the early days of the Internet when most people connected over common-carrier telephone lines. The question is whether tomorrow's communications services will be defined by citizen choices or by the business interests of a handful of cable broadband companies. At Cyberlaw in the Supreme Court, the Stanford Law School Center for Internet and Society will convene a discussion of these cases, their broader implications, and what effect the pending Supreme Court decisions could have on the public interest. Panels of attorneys litigating and arguing these cases, the parties affected by them, the policy advocates whose work will begin once the Judges rule, and the people thinking about what the legal landscape will look like for the next ten years will discuss both cases and the impact the decisions will have on the future.
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The Stanford Center for Internet and Society is hosting a conference on April 30, reviewing the cyberlaw day in the Supreme Court. Sign up here. Here’s their announcement.
On March 29, 2005, the U.S. Supreme Court heard arguments in two cases that together will greatly determine how government can and will regulate the Internet in the future, and the impact that the public interest will have on the development of cyberlaw over the next decade.

In MGM v. Grokster, the Court will decide whether copyright holders can veto consumer electronics and computing innovations that upset the content industries’ prevailing business models, even where the technology’s non-infringing uses provide substantial benefits to consumers. The question is whether consumer demand for new and better products will drive technological development, or copyright owners’ demand for control will retard it.

In Brand X v. FCC, the Court will decide whether the FCC should retain the option to regulate cable modem services to promote open access to broadband lines, universal service and network neutrality, as it did in the early days of the Internet when most people connected over common-carrier telephone lines. The question is whether tomorrow’s communications services will be defined by citizen choices or by the business interests of a handful of cable broadband companies.

At Cyberlaw in the Supreme Court, the Stanford Law School Center for Internet and Society will convene a discussion of these cases, their broader implications, and what effect the pending Supreme Court decisions could have on the public interest. Panels of attorneys litigating and arguing these cases, the parties affected by them, the policy advocates whose work will begin once the Judges rule, and the people thinking about what the legal landscape will look like for the next ten years will discuss both cases and the impact the decisions will have on the future.

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different worlds http://www.lessig.org/2005/01/different-worlds/ http://www.lessig.org/2005/01/different-worlds/#comments Fri, 28 Jan 2005 09:10:36 +0000 http://lessig.org/blog/2005/01/different_worlds.html IMG_0061.jpg I walked out of my constitutional law class, climbed into a car to go to a plane to fly to Chicago to fly to Sao Paolo to fly to Porto Alegre to get into a car to come to this. Brazil is hosting the World Social Forum, and Barlow and I will be on a panel with Manuel Castells and Gilberto Gil on Saturday. But Thursday night, we visited the Youth Camp, which in part this year is devoted to demonstrating and developing tools to support free software and free culture. We arrived in the middle of a concert. Gil was asked to speak. As he went to the mic, the tent fell silent. Hundreds were packed into a tiny space. Gil began to describe the work of the Lula government to support free software, and free culture, when a debate broke out. I don't speak Portuguese, but a Brazilian who spoke English translated for Barlow and me. The kid was arguing with Gil about free radio. Two minutes into the exchange, about 8 masked protesters climbed onto chairs on one side of the tent, and held posters demanding free radio. A huge argument exploded, with the Minister (Gil) engaging many people directly, and others stepping in to add other perspectives. After about 20 minutes, the argument stopped. The band played again, and then Gil was asked to perform. For about another twenty minutes, this most extraordinary performer sang the music he's been writing since the 1960s, while the whole audience (save Barlow and I) sang along. When the concert was over, Barlow, Gil and I were led out of the tent. It was practically impossible to move, as hundreds begged Gil for autographs, or posed for pictures. At each step, someone had an argument. At each step, Gil stopped to engage. Even after Gil was in the car, some kid rapped on the window, yelling yet another abusive argument. Gil, with the patience of a saint, opened the window, and argued some more. This was a scene that was astonishing on a million levels. I've seen rallies for free software in many placed around the world. I've never seen anything like this. There were geeks, to be sure. But not many. The mix was broad-based and young. They cheered free software as if it were a candidate for President. But more striking still was just the dynamic of this democracy. Barlow captured the picture at the top, which in a sense captures it all. Here's a Minister of the government, face to face with supporters, and opponents. He speaks, people protest, and he engages their protest. Passionately and directly, he stands at their level. There is no distance. There is no "free speech zone." Or rather, Brazil is the free speech zone. Gil practices zone rules. Even after the speech was over, the argument continues. At no point is there "protection"; at every point, there is just connection. This is the rockstar who became a politician, who became a politician as a rockstar. I remember reading about Jefferson's complaints about the early White House. Ordinary people would knock on the door, and demand to see the President. Often they did. The presumption of that democracy lives in a sense here. And you never quite see how far from that presumption our democracy has become until you see it, live, here. "This is what democracy looks like." Or at least, a democracy where the leaders can stand packed in the middle of a crowd, with protesters yelling angry criticism yet without "security" silencing the noise. No guns, no men in black uniform, no panic, and plenty of press. Just imagine.]]>
IMG_0061.jpg

I walked out of my constitutional law class, climbed into a car to go to a plane to fly to Chicago to fly to Sao Paolo to fly to Porto Alegre to get into a car to come to this. Brazil is hosting the World Social Forum, and Barlow and I will be on a panel with Manuel Castells and Gilberto Gil on Saturday. But Thursday night, we visited the Youth Camp, which in part this year is devoted to demonstrating and developing tools to support free software and free culture.

We arrived in the middle of a concert. Gil was asked to speak. As he went to the mic, the tent fell silent. Hundreds were packed into a tiny space. Gil began to describe the work of the Lula government to support free software, and free culture, when a debate broke out. I don’t speak Portuguese, but a Brazilian who spoke English translated for Barlow and me. The kid was arguing with Gil about free radio. Two minutes into the exchange, about 8 masked protesters climbed onto chairs on one side of the tent, and held posters demanding free radio. A huge argument exploded, with the Minister (Gil) engaging many people directly, and others stepping in to add other perspectives. After about 20 minutes, the argument stopped. The band played again, and then Gil was asked to perform. For about another twenty minutes, this most extraordinary performer sang the music he’s been writing since the 1960s, while the whole audience (save Barlow and I) sang along. When the concert was over, Barlow, Gil and I were led out of the tent. It was practically impossible to move, as hundreds begged Gil for autographs, or posed for pictures. At each step, someone had an argument. At each step, Gil stopped to engage. Even after Gil was in the car, some kid rapped on the window, yelling yet another abusive argument. Gil, with the patience of a saint, opened the window, and argued some more.

This was a scene that was astonishing on a million levels. I’ve seen rallies for free software in many placed around the world. I’ve never seen anything like this. There were geeks, to be sure. But not many. The mix was broad-based and young. They cheered free software as if it were a candidate for President.

But more striking still was just the dynamic of this democracy. Barlow captured the picture at the top, which in a sense captures it all. Here’s a Minister of the government, face to face with supporters, and opponents. He speaks, people protest, and he engages their protest. Passionately and directly, he stands at their level. There is no distance. There is no “free speech zone.” Or rather, Brazil is the free speech zone. Gil practices zone rules.

Even after the speech was over, the argument continues. At no point is there “protection”; at every point, there is just connection. This is the rockstar who became a politician, who became a politician as a rockstar.

I remember reading about Jefferson’s complaints about the early White House. Ordinary people would knock on the door, and demand to see the President. Often they did. The presumption of that democracy lives in a sense here. And you never quite see how far from that presumption our democracy has become until you see it, live, here. “This is what democracy looks like.” Or at least, a democracy where the leaders can stand packed in the middle of a crowd, with protesters yelling angry criticism yet without “security” silencing the noise. No guns, no men in black uniform, no panic, and plenty of press. Just imagine.

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just in time for Christmas http://www.lessig.org/2004/12/just-in-time-for-christmas/ http://www.lessig.org/2004/12/just-in-time-for-christmas/#comments Mon, 13 Dec 2004 14:38:47 +0000 http://lessig.org/blog/2004/12/just_in_time_for_christmas.html stone.jpg So in the spirit of the times (sussing great gift ideas), I've convinced an old friend, and my former Dean, to spend a couple days in this space talking about his new book, In Perilous Times. Starting Wednesday, Geof Stone will be blogging here about the book. It is a great and amazing history, both optimistic and depressing. It will be Geof's first time blogging, so please make him welcome. And were I to use this space to self-promote, I might point to Businessweek's pick of the top ten books of the year. But I won't waste your time with that.]]>
stone.jpg

So in the spirit of the times (sussing great gift ideas), I’ve convinced an old friend, and my former Dean, to spend a couple days in this space talking about his new book, In Perilous Times. Starting Wednesday, Geof Stone will be blogging here about the book. It is a great and amazing history, both optimistic and depressing. It will be Geof’s first time blogging, so please make him welcome.

And were I to use this space to self-promote, I might point to Businessweek‘s pick of the top ten books of the year. But I won’t waste your time with that.

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Anti-bootlegging booted http://www.lessig.org/2004/09/antibootlegging-booted/ http://www.lessig.org/2004/09/antibootlegging-booted/#comments Fri, 24 Sep 2004 23:06:43 +0000 http://lessig.org/blog/2004/09/antibootlegging_booted.html here. I should have the opinion up soon. (Disclosure: I did pro bono work on this case.) UPDATE: I have a scanned pdf of the opinion. (Warning: It is huge (64mg)). (Thanks to Joe Gratz, here's a very readable compressed version at about 500k). The opinion is fantastic. The Court concludes (1) that antibootlegging regulations are "copyright-like" regulations, and thus are within the scope of the Copyright Clause, (2) that this regulation violates the Copyright Clause because it doesn't have a limited term (citing Eldred (sweet justice)) (And remember, the 11th Circuit's case expressly did not consider the limited times argument), and (3) that Congress can't use the Commerce Clause to do what it can't do under the Copyright Clause, so long as the subject matter is "copyright-like." I have always been a fan of Judge Baer, but never more than today.]]> A district court in the Southern District of New York has struck down the anti-bootlegging provision of the copyright act. There is a new report here. I should have the opinion up soon. (Disclosure: I did pro bono work on this case.)

UPDATE: I have a scanned pdf of the opinion. (Warning: It is huge (64mg)). (Thanks to Joe Gratz, here‘s a very readable compressed version at about 500k).

The opinion is fantastic. The Court concludes (1) that antibootlegging regulations are “copyright-like” regulations, and thus are within the scope of the Copyright Clause, (2) that this regulation violates the Copyright Clause because it doesn’t have a limited term (citing Eldred (sweet justice)) (And remember, the 11th Circuit’s case expressly did not consider the limited times argument), and (3) that Congress can’t use the Commerce Clause to do what it can’t do under the Copyright Clause, so long as the subject matter is “copyright-like.”

I have always been a fan of Judge Baer, but never more than today.

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the GPL in Germany http://www.lessig.org/2004/09/the-gpl-in-germany/ http://www.lessig.org/2004/09/the-gpl-in-germany/#comments Mon, 06 Sep 2004 04:44:31 +0000 http://lessig.org/blog/2004/09/the_gpl_in_germany.html translated a Munich Court decision about the enforceability of the GPL in Germany. Ahlert also has an introduction, to the case and to Creative Commons, and Professor Hoeren has written a commentary.]]> Christian Ahlert and Thomas Hoeren have translated a Munich Court decision about the enforceability of the GPL in Germany. Ahlert also has an introduction, to the case and to Creative Commons, and Professor Hoeren has written a commentary.

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help the British think about free software? http://www.lessig.org/2004/09/help-the-british-think-about-f/ http://www.lessig.org/2004/09/help-the-british-think-about-f/#comments Fri, 03 Sep 2004 23:32:09 +0000 http://lessig.org/blog/2004/09/help_the_british_think_about_f.html here.) The author is looking for helpful comments. I've created a temporary email address for David Berry. You can send him comments at that address for a week.]]> The UK Parliamentary Office on Science and Technology is preparing a POST note on ‘Open Source’. (No, I didn’t know what a POST note is exactly either, but check it out here.) The author is looking for helpful comments. I’ve created a temporary email address for David Berry. You can send him comments at that address for a week.

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The Induce Act Revised http://www.lessig.org/2004/08/the-induce-act-revised/ http://www.lessig.org/2004/08/the-induce-act-revised/#comments Fri, 06 Aug 2004 05:38:30 +0000 http://lessig.org/blog/2004/08/the_induce_act_revised.html Here’s the question: What would the Induce Act look like if it balanced the interests of copyright owners and technological innovators? Here’s what: the Inducing Innovation Act.

Comments welcomed, and thanks to all those who helped work on this.

Short Commentary

The goal of this Act is to clarify the scope of secondary and vicarious liability under copyright. Today, pernicious consequences have attended the vague scope of liability under copyright. In some cases, parties as distantly connected to content as credit card companies have been brought into court on copyright infringement charges. Other companies who handle or pass-on copyright content are forced to adopt costly measures for fears of vicarious liability. Companies that design legitimate new electronics or services have very unclear ideas of when they can expect to face liability for the potential acts of their customers.

This Act remedies these problems by making it clear that, as in federal criminal law, only accomplices to copyright infringement are liable for the acts of the principal. Accomplices are defined as those who intentionally aid or command specific acts of copyright infringement. The Act also makes clear that merely knowledge that a product could be used for infringement is not sufficient to create liability. This approach is consistent with the scope of accomplice liability in other areas of the law, and puts industries regulated by copyright on an equal footing with others. The Act further reaffirms the safe harbour for “substantially non-infringining products: from the Sony Betamax case, a case hailed for its role in great pace of information technology growth over the last two decades.

The point of the Act is make it as clear as possible to innovators what they can do to steer clear of copyright liability. It strikes a balance: persons and companies may not serve as intentional accomplices to infringement, but are otherwise free to design legitimate, neutral devices and services without undue liability concerns.

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Copyright in Eight Years http://www.lessig.org/2004/08/copyright-in-eight-years/ http://www.lessig.org/2004/08/copyright-in-eight-years/#comments Thu, 05 Aug 2004 03:18:47 +0000 http://lessig.org/blog/2004/08/copyright_in_eight_years.html So today copyright scholar Joe Liu at Boston College asked a room full of law professors an interesting question. What did we think copyright would look like in 8 years? Here were some of the main categories of predictions (some contradict):

1. Primarily a criminal regime (remember when copyright was considered civil law?)
2. Focused on control of the design of hardware & software (in the model of the Broadcast Flag) to prevent infringement ex ante;
3. A regime dedicated to preserving the retail market and revenue streams for 4 discs: (CDs, DVDs, Software CDs, and Video-Game CDs), having given up on nearly everything else;
4. Made in WIPO or the FCC as often as the U.S. Congress;
5. Gone (not a good bet).

Any others?

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