Lessig » ideas 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 Help needed: Looking for examples http://www.lessig.org/2007/01/help-needed-looking-for-exampl/ http://www.lessig.org/2007/01/help-needed-looking-for-exampl/#comments Fri, 05 Jan 2007 08:04:24 +0000 http://lessig.org/blog/2007/01/help_needed_looking_for_exampl.html matrix.png So I'm looking for some examples of sites or companies that fit this particular way of carving up the world. This matrix builds upon stuff I've been talking about. But to be clear, let me begin by defining the categories: RO v. RW environments
This is a distinction between the primary use intended for creative work that the site makes available. It answers the question: "What can you do with the content on this site?" RO means the primary use intended is "read only" -- the content is offered for the purpose of consumption; there's no invitation to add content back, or to modify the content offered. RW means the primary use intended is "read/write" -- the content is offered in a way that invites others to add or modify the content that is offered. RW sites can be more or less RW: some invite contributions to the site without permitting modification of content offered.
Commercial v. Sharing environments
This is distinction between the objectives of the site. It is a fuzzy distinction, but the core difference is this: Commercial sites aim primarily to make money. They are usually run by commercial enterprises, and they measure their success in financial terms. Sharing sites are not aimed primarily at making money. It's not that creators and users of these sites are communists. It's just that creators and users of these sites do things other than (try to) make money at least part of the day. Think of the Wall Street mogul who teaches Sunday School (and there are these). Maybe the best way to feel the distinction between a sharing and commercial site is to imagine the role of money in each: There's nothing weird about the owner of a commercial site offering her employees more money in exchange for more work. There would be something very weird in our Wall Street mogul trying to opt out of Sunday School one week by offering each of the kids $50. Money is normal in one context; it is out of place in the other.
It's fairly easy to build a list of examples of each of these four categories. I've done that here. But what I'm particularly interested in is the combination of these two distinctions -- the matrix above. I'd be grateful for more examples to fit within each of these four boxes. I've built a stub for that list here. Now obviously, this is social space, not logical space, so the matrix does not describe everything. And indeed, the most interesting category I'm keen to explore are hybrids between commercial and sharing sites -- plainly commercial organizations that try to exploit (in the best sense of that term) a sharing economy. The key to success with the hybrid is to exploit without poisoning the sharing community. Linux is the most familiar example of this: Sharing economy motives push many, perhaps most, to contribute; but plainly commercial entities (RedHat, IBM) are trying to exploit that sharing economy. I've got a stub to collect examples of hybrids here, with a bit more explanation about what they are. Importantly: My aim here is descriptive, not normative. It is to see a wide range of examples to begin puzzling through what makes the most successful within each work. For these purposes, the only evil is force or fraud, and none of the four kinds I've mapped need rely upon either. So please direct the flame wars about good and bad elsewhere.]]>
matrix.png

So I’m looking for some examples of sites or companies that fit this particular way of carving up the world. This matrix builds upon stuff I’ve been talking about. But to be clear, let me begin by defining the categories:

RO v. RW environments

This is a distinction between the primary use intended for creative work that the site makes available. It answers the question: “What can you do with the content on this site?”

RO means the primary use intended is “read only” — the content is offered for the purpose of consumption; there’s no invitation to add content back, or to modify the content offered.

RW means the primary use intended is “read/write” — the content is offered in a way that invites others to add or modify the content that is offered. RW sites can be more or less RW: some invite contributions to the site without permitting modification of content offered.

Commercial v. Sharing environments

This is distinction between the objectives of the site. It is a fuzzy distinction, but the core difference is this:

Commercial sites aim primarily to make money. They are usually run by commercial enterprises, and they measure their success in financial terms.

Sharing sites are not aimed primarily at making money. It’s not that creators and users of these sites are communists. It’s just that creators and users of these sites do things other than (try to) make money at least part of the day. Think of the Wall Street mogul who teaches Sunday School (and there are these).

Maybe the best way to feel the distinction between a sharing and commercial site is to imagine the role of money in each: There’s nothing weird about the owner of a commercial site offering her employees more money in exchange for more work. There would be something very weird in our Wall Street mogul trying to opt out of Sunday School one week by offering each of the kids $50. Money is normal in one context; it is out of place in the other.

It’s fairly easy to build a list of examples of each of these four categories. I’ve done that here.

But what I’m particularly interested in is the combination of these two distinctions — the matrix above. I’d be grateful for more examples to fit within each of these four boxes. I’ve built a stub for that list here.

Now obviously, this is social space, not logical space, so the matrix does not describe everything. And indeed, the most interesting category I’m keen to explore are hybrids between commercial and sharing sites — plainly commercial organizations that try to exploit (in the best sense of that term) a sharing economy. The key to success with the hybrid is to exploit without poisoning the sharing community. Linux is the most familiar example of this: Sharing economy motives push many, perhaps most, to contribute; but plainly commercial entities (RedHat, IBM) are trying to exploit that sharing economy.

I’ve got a stub to collect examples of hybrids here, with a bit more explanation about what they are.

Importantly: My aim here is descriptive, not normative. It is to see a wide range of examples to begin puzzling through what makes the most successful within each work. For these purposes, the only evil is force or fraud, and none of the four kinds I’ve mapped need rely upon either. So please direct the flame wars about good and bad elsewhere.

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Fair Use and Network Neutrality http://www.lessig.org/2006/05/fair-use-and-network-neutralit/ http://www.lessig.org/2006/05/fair-use-and-network-neutralit/#comments Sun, 21 May 2006 23:22:59 +0000 http://lessig.org/blog/2006/05/fair_use_and_network_neutralit.html So the recent struggles about network neutrality have led me to recognize something I hadn’t quite seen before. And that something in turn makes more puzzling the debates that have been raised around network neutrality.

The something to recognize is that in a fundamental sense, fair use (FU) and network neutrality (NN) are the same thing. They are both state enforced limits on the property rights of others. In both cases, the limits are slight — the vast range of uses granted a copyright holder are only slightly restricted by FU; the vast range of uses allowed a network owner are only slightly restricted by NN. And in both cases, the line defining the limits is uncertain. But in both cases, those who support each say that the limits imposed on the property right are necessary for some important social end (admittedly, different in each case), and that the costs of enforcing those limits are outweighed by the benefits of protecting that social end.

So from this perspective, it is easy to understand those who reject FU and NN (who are they?). And it is easy to understand those who embrace FU and NN. What gets difficult is understanding those who embrace one while rejecting the other — at least when that rejection is articulated in terms of “government regulation.”

For there is a consistency problem for those who embrace FU while arguing against “government regulation to support NN.” For FU and NN are both “government regulations” — each government defined limits on government granted property rights. In both cases, a government official (a court, or the FCC) is telling a property owner “this use of your property is opposed by the state.” And while there are important differences in the way FU and NN get administered, if anything, FU is more vague, more complex, more expensive, and more uncertain than the regulations being called for under NN.

So too are other arguments advanced against NN also available FU. NN opponents say the market will take care of the problem — that people won’t use networks that don’t give them the freedom they want. But the same could be said about copyright — if Madonna’s too restrictive, you could try Lyle Lovett. Some say there’s not a showing of market power with NN sufficient to justify state intervention. But on that standard, could there ever be a justification for FU? Who could possibly have enough culture as to have that amount of market power over culture? And finally, NN opponents say NN would sap the incentives from network owners, and they won’t build fast networks. But again, the same argument is made against FU — that giving up perfect control destroys the incentives of copyright holders. In both cases, the arguments are the same — on the one side, the call for perfect control over a property right; on the other, the demand for some limit in the exercise of a property right.

There’s also a consistency problem of course for those who embrace NN and criticize FU (me, for example). For the reasons I’m critical of FU are exactly the reasons people are fearful of NN. That recognition has helped me understand the nature of the concern about NN. But again, having lived the legal battles over fair use, and watched the regulatory battles over NN(‘s equivalent), I don’t see how anyone can be categorical in embracing FU while rejecting NN.

No doubt, some of those who embrace FU while rejecting NN (or the other way round) do so because the value said to be protected by each is not, in their view, sufficiently strong. That difference wouldn’t raise questions about consistency. It would simply reflect differences in values.

But then let’s hear that debate. Let’s hear people who say competition in applications and content isn’t important. Or that it doesn’t raise issues of free speech. Or whatever other reasons might be advanced to argue that government shouldn’t intervene here. Such arguments would at least be progress in a debate that seems to me so far just stuck in a confusion.

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The Anticommons Problem, theory and practice http://www.lessig.org/2005/12/the-anticommons-problem-theory/ http://www.lessig.org/2005/12/the-anticommons-problem-theory/#comments Thu, 29 Dec 2005 12:18:52 +0000 http://lessig.org/blog/2005/12/the_anticommons_problem_theory.html this paper, Michael Heller introduced the concept of the "anticommons" -- a resource subject to many different "property-like" claims, thus leading to its underutilization. The context was post-Soviet Russia. That context made it sound remote. But the idea was soon domesticated in this paper by Heller and Eisenberg appearing in Science. And then the concept got its most important play in a paper by Nobel Prize winning (and conservative) economist James Buchanan and Yong Yoon, titled Symmetric Tragedies. That's all fantastically good theory. Here, however, is the anticommons in practice. There are many more examples like this. I'll make it a practice of collecting them. Maybe enough examples will get the thick-political types to recognize (as the very much not thick Buchanan recognizes) that the issue of IP reform is not about whether you favor property or not, but whether THE PARTICULAR FORM OF PROPERTY the government has crafted operates efficiently. (Thanks for the pointer, Tom!)]]> In this paper, Michael Heller introduced the concept of the “anticommons” — a resource subject to many different “property-like” claims, thus leading to its underutilization. The context was post-Soviet Russia. That context made it sound remote. But the idea was soon domesticated in this paper by Heller and Eisenberg appearing in Science. And then the concept got its most important play in a paper by Nobel Prize winning (and conservative) economist James Buchanan and Yong Yoon, titled Symmetric Tragedies.

That’s all fantastically good theory. Here, however, is the anticommons in practice. There are many more examples like this. I’ll make it a practice of collecting them. Maybe enough examples will get the thick-political types to recognize (as the very much not thick Buchanan recognizes) that the issue of IP reform is not about whether you favor property or not, but whether THE PARTICULAR FORM OF PROPERTY the government has crafted operates efficiently.

(Thanks for the pointer, Tom!)

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an odd lessig-blog entry http://www.lessig.org/2005/10/an-odd-lessigblog-entry/ http://www.lessig.org/2005/10/an-odd-lessigblog-entry/#comments Thu, 13 Oct 2005 16:00:48 +0000 http://lessig.org/blog/2005/10/an_odd_lessigblog_entry.html The Optimists, which will debut in New York on October 21st. The film is about the Bulgarian conspiracy to save Jews from concentration camps. Veni says it is a fantastic movie. (For the record: I don't do movie recommendations except if they come from Veni. So if you ever want your movie mentioned on my blog, don't ask me. Ask Veni.)]]> So Veni Markovski, source of many many great things, especially in Bulgaria (including cc-Bulgaria), asked me to mention a film, The Optimists, which will debut in New York on October 21st. The film is about the Bulgarian conspiracy to save Jews from concentration camps. Veni says it is a fantastic movie.

(For the record: I don’t do movie recommendations except if they come from Veni. So if you ever want your movie mentioned on my blog, don’t ask me. Ask Veni.)

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buzz tracking, globally http://www.lessig.org/2005/05/buzz-tracking-globally/ http://www.lessig.org/2005/05/buzz-tracking-globally/#comments Sun, 15 May 2005 02:57:45 +0000 http://lessig.org/blog/2005/05/buzz_tracking_globally.html Buzztracker. Using Google, the site gives a visual representation of news on the net.]]> Here’s a cool remix of the news, in a new service called Buzztracker. Using Google, the site gives a visual representation of news on the net.

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the best of reason http://www.lessig.org/2005/01/the-best-of-reason/ http://www.lessig.org/2005/01/the-best-of-reason/#comments Fri, 28 Jan 2005 11:07:16 +0000 http://lessig.org/blog/2005/01/the_best_of_reason.html choicecover.jpg There is lots to Reason. This book collects the best -- including one of my favorites, Copy Catfight, by the great Jesse Walker.]]> choicecover.jpg There is lots to Reason. This book collects the best — including one of my favorites, Copy Catfight, by the great Jesse Walker.

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Timing & Vested Rights http://www.lessig.org/2004/08/timing-vested-rights/ http://www.lessig.org/2004/08/timing-vested-rights/#comments Sun, 22 Aug 2004 20:03:16 +0000 http://lessig.org/blog/2004/08/timing_vested_rights.html Doug Lichtman is an information law scholar at University of Chicago and one of the best of our generation (I recommend in particular his information platforms piece). He and I agree on many things, but disagree on some too. And when you boil things down, the differences come down to something simple: our views on timing.

Doug believes that property rights are tantamount to government promises. If, say, government promises to grant patents that last 20 years, it needs to stand by those promises to maintain the credibility of the system, and the incentives to invest in it. So even if someone comes along who might make better use of the patented technology, that’s too bad. To use an old phrase, these are rights that are vested.

Myself, I am inclined toward anoter position: that the question of who “comes to the nuisance” shouldn’t always matter. Imagine someone wanted to open a restaurant next to your house, and that the restaurant is loud and odiferous. On the one hand, we might say that since the restaurant is ruining the value of your property, you ought be allowed to stop it or ask for damages. That seems to make some sense. But we can reverse the question and ask whether are letting you, the homeowner, ruin the business and social value of the restaurant, just because you got there “first.” For yes there is some value to honoring the promises inherent in property rights, but not a value that always transcends looking for the highest use of a given asset.

The translation of this position into copyright and telecom law is simple. In general, copyright owners were already “there,” and the electronics industry and the Internet came, and began ruining an otherwise peaceful existence. Tivo, for example, comes along and wrecks the value of DVDs sales, something the owners of copyright had counted on. Or, more obviously, uncontrolled P2P filesharing wrecks the value of existing copyrights.

In Doug’s view, the government, to preserve incentives, must stand up for the rights it promised, to whomever it promised first. In my view, that promise is always conditional — and if more valuable uses come later, they should sometimes win out (for Constitutional law buffs, think Charles River Bridge). It may be that values stressed in Doug’s position are more compelling for patents (which are after all, much shorter) and mine for copyright. But in general, how you feel about this question can help explain much of how you feel about law and technological change.

(Thanks also to Washington attorney Matthew Schurers, who also formulates the question this way).

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Who Cares about Innovation? http://www.lessig.org/2004/08/who-cares-about-innovation/ http://www.lessig.org/2004/08/who-cares-about-innovation/#comments Sat, 21 Aug 2004 22:47:00 +0000 http://lessig.org/blog/2004/08/who_cares_about_innovation.html Technologists are divided in some ways, but united by a common faith. Stated simply, we worship innovation. Openist, deregulationist, libertarian, or cyber-anarchist all take innovation as deliverance. Our battles are mostly internecine warfare, fights about how best to achieve that common goal.

But how often do we ask ourselves: Why? What is the �end� importance of innovation? Is it more than just liking new stuff? How, if at all, does innovation connect with, say, human happiness?

There are certainly some answers to this last question. Joseph Schumpeter, patron saint to the church, gives among the most important. His idea is that constant innovation, and not price competition is what drives growth under capitalism. While thinking capitalism doomed, he nonetheless recognized as its virtue the �process of industrial mutation … that incessantly revolutionizes the economic structure from within, incessantly destroying the old one, incessantly creating a new one.” So if we believe that economic growth is what makes societies happy, promoting innovation can be this way linked to human ends.

Another view runs like this: we are happier if we have reason to believe that the future will be better than the past. Stated simply, ongoing innovation makes us feel that way. When you read about a possible cure for cancer or that cell phone numbers are now portable, you think, one maybe day we�ll be free of disease, premature death, and cell phone extortion. And that feels nice.

Whether people really are happier now than in Ancient Rome or the Han Dynasty is somewhat irrelevant to this belief. We just want to feel like there is some ideal future out there, which we are slowly drifting toward, even if it is not necessarily attainable in this life.

A third, maybe the most obvious answer, is that the stuff invented, like hair-dryers or the electric toothbrush, makes our lives easier and simpler, and hence happier. That’s convincing, particularly in the field of toiletries, and particularly if you’ve spent any time in the developing world.

But what is still missing — what none of these answers do is ask how valuable innovation is compared with other priorities. At its worst, innovationists can beccome obssessed with change for change’s sake, and addicted to the thrill of the new. Which would be fine, except for these days technology policy and public policy have merged. And Wired magazine is hardly Cicerco. A teenage fascination with new stuff isn’t necessarily so great when the happiness of the many are at issue.

Consider a question that professor Brett Fischman asks his class about the internet, the central monument for innovationists: �What actually makes the Internet valuable to society?�

This question stopped me for awhile. Measured in social value, surely some of the oldest applications, like email, relatively untouched by innovation, produce most of the network’s present social value. Sure, I think VoIP over powerlines would be pretty cool (thanks Adam Thierer). But compared to finding old friends, staying in touch, and everything else that email does, there is no serious comparison. Logic like this suggests that faith in innovation is a faith out of touch with human ends. Perhaps making what is obviously useful � like email � reach more people is more important than constantly reinventing, redestroying, or finally writing the perfect debugger.

I do think the criticisms can be rebutted. Email, after all, was an invention, and required the right environment for it to come about. Innovationists don’t always think about nothing else. But those who share a faith in the importance of innovation should be sure that what we fight hardest for is not just the abstract beauty of new technologies, but ideals that actually have some connection to human ends.

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The Loser’s Paradox http://www.lessig.org/2004/08/the-losers-paradox/ http://www.lessig.org/2004/08/the-losers-paradox/#comments Wed, 18 Aug 2004 03:59:40 +0000 http://lessig.org/blog/2004/08/the_losers_paradox.html Economists who study government (public choice theorists) have since the 1970s been interested in the “Loser’s Paradox.” Can it help explain the content of our copyright and telecommunications laws?

Economists have noted that a surprising amount of government support goes to ailing sectors instead of expanding sectors. Classically, agriculture, textiles, clothing, footwear, steel and shipbuilding are the examples of industries on perpetual life support. Each has been in decline for decades, yet get more help from Government than any other. Conversely, expanding industries, like the high-tech industry, rarely if ever receive government assistance. In short, economists conclude, Government picks losers.

There are several explanation for why this is. One, associated with economist Anne Kruger, is that governments have an “identity bias” — they care more about people who lose jobs than people who fail to get jobs. Another, from economists Richard E. Baldwin and Fr�d�ric Robert-Nicoud holds that losers don’t fear market entry and so lobby harder. As a consequence, “it is not that government policy picks losers, it is that losers pick government policy.”

That’s the theory. Can the Loser’s paradox help explain the content of the copyright and telecommunications laws? I’ve long thought so. A crucial thing to understand that its not entertainment or communications that are in decline. People are probably willing to spend as much as they ever were to be entertained. Rather, it is specific technlogies or channels of distribution that are threatened– most clearly, the model of the shiny disk. These declining industries that ceaselessly demand, and get, government protection.

So seeing things this way you can appreciate that there’s not much a conceptual difference between something like the Induce Act on the one hand, and the farm subsidies for corn corners on the other. Each case features an industry that desparately wants to slow the arrival of more competitive rivals. And each are in truth, slowly dying industries whose ongoing decay poisions our economy.

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The Balkanization of the Internet http://www.lessig.org/2004/08/the-balkanization-of-the-inter/ http://www.lessig.org/2004/08/the-balkanization-of-the-inter/#comments Tue, 17 Aug 2004 06:25:58 +0000 http://lessig.org/blog/2004/08/the_balkanization_of_the_inter.html So how often do you actually visit sites in other countries? How about in other languages?

If you’re like many users, the answer may “not that often” (apologies to the foreign readers of Lessig Blog). Its a small sign of the Balkanization of the Internet, a process that is happening faster than anyone is noticing. What we once called a global internet is becoming, for many practical purposes, a collection of nation-state networks, still linked by the internet protocol, but for many purposes, separate. Some of the evidence:

– In China, beyond censorship, the amount of actual data flowing in and out as compared to within the country is diminishing. A fairly recent study found 72% of information used to be domestic. And China’s non-IP “169″ intranet — think the AOL walled garden turned into a jungle — is getting nearly as large as the actual Chinese internet. And why not — unlike AOL, its 80% cheaper, and has most of the Chinese content.

– Every-improving geolocation software have made big sites like Google national. As Esther Dyson writes of Google, “Google has now significantly upgraded its geographic targeting. When an advertiser buys an AdWord, it can specify geography, not just by city or region as it can now, but by a radius around a specific address or by specific geographic boundaries.” With that kind of precision, Google can easily cater to distinct national interests.

– Australia is considering a country-wide government filter, designed, for now, to keep out hard-core porn.

– Europe’s privacy laws, and cases like this one, make hosting separate web services for Europe a consideration.

– Amercian IP enforcement, as everyone reading this blog knows, makes shielding content from the U.S. markets make sense. Ditto for Australian libel laws.

– Bandwidth differences are hindering inter-connectivity. Countries like S. Korea are largely broadband, while others are mixed, and still others are primarily narrowband. Its tough for narrowband users to access sites in countries that assume broadband.

That this is happening doesn’t answer whether its a good or bad thing. So good, bad, reversable, inevitable? All this happens also to be the subject of my current book, so I’d love to hear it.

UPDATE: From the Comments
“There is significant irony in term used here – balkanization. … In short, internet is maybe the only thing that has not been balkanized in the Balkans.”
-Veljko Kukulj
“The Balkanization of the internet is one of the great things about it…. A healthy internet is not one where netizens click uninterestedly to sites of all the nations, it�s one where netizens participate.” – Branko Collin
“Right now I�d love to be able to visit the BBCs five live channels of Olympic coverage � but the ip^2 walls are preventing us. That�s an interesting story of balkanization in itself.” – James Howison
“[From China] In fact, the ongoing People�s War against Pornography did not rely that much on technology but on email addresses and phone numbers where concerned citizens could complain.” – Fons Tuinstra

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Piracy’s Punishment http://www.lessig.org/2004/08/piracys-punishment/ http://www.lessig.org/2004/08/piracys-punishment/#comments Mon, 16 Aug 2004 14:37:34 +0000 http://lessig.org/blog/2004/08/piracys_punishment.html If it is true, first, that widespread piracy at some point diminishes the incentives for industry to invest in new works;

And if it is true, second, that piracy is limited to a demographic, say, 15-25 year-olds (perhaps because people older than that are lazy or value their time more);

Won’t the eventual response of industry be to simply begin investing in films like “On Golden Pond,” and music like “Air Supply, Greatest Hits part 6?”

In other words, doesn’t piracy carry its own punishment? (And conversely, doesn’t paying brings its own rewards?) That’s how the rest of the market works — products follow willingness to pay. And if this is right, what are the arguments for government supplementing the punishment?

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New Legal Regime for Music File Sharing http://www.lessig.org/2004/08/new-legal-regime-for-music-fil/ http://www.lessig.org/2004/08/new-legal-regime-for-music-fil/#comments Wed, 11 Aug 2004 11:18:24 +0000 http://lessig.org/blog/2004/08/new_legal_regime_for_music_fil.html When disruptive new technologies have emerged that changed the way in which consumers have gotten access to news and entertainment (e.g., radio and cable television), the existing legal structures of the Copyright Act often could not accommodate the challenges posed by the new technology. In the early case of piano rolls and later with radio and cable television, for example, Congress adopted compulsory licensing legislation as a means of appropriately compensating content owners while simultaneously encouraging widespread use of the new technologies.

With P2P music file sharing, we have witnessed a range of dramatic responses from the content owning community: massive lawsuits against individuals, including innocent children and grandparents; invasive efforts to get customer information without the intervention of a judge through misuse of administrative subpoena provisions of title II of the DMCA; and now the Induce Act in the Senate.

Fred von Lohmann and his colleagues at EFF have suggested an innovative alternative to litigation and traditional compulsory licenses. Their approach, described as a “voluntary collective licensing” system, is aimed at compensating artists while ensuring that new technology will flourish. I would welcome your thoughts on whether this is the kind of approach we in Congress should implement or whether there are other alternative means of moving beyond the unproductive debates of today to a new legal regime for music file sharing.

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Publisher v. Author http://www.lessig.org/2004/08/publisher-v-author/ http://www.lessig.org/2004/08/publisher-v-author/#comments Mon, 09 Aug 2004 01:23:25 +0000 http://lessig.org/blog/2004/08/publisher_v_author.html cathy guthrie.jpg
As Mark Frauenfelder and others have documented, the Guthrie family and probably Woody himself think the JibJab parody just fine. In the words of Grandaughter Cathy Guthrie (pictured here), “this parody was made for you and me.”

But here’s the thing: much of the JibJab Brouhaha was actually caused by a lack of author’s rights….

I’m not speaking heresay: the point is that who controls the rights can matter as much, if not more, than what the rights are. Here, its publisher “The Richmond Organization” (TRO) and not the family, who controls the rights to “This Land.” And Richmond’s reaction was the opposite of Cathy’s: “The damage to the song is huge,” said Kathryn Ostien, director of copyright licensing, because “this puts a completely different spin on the song.” (Why “different spin” = “huge damage” I’m not sure).

Yes, authors and creators can suffer fits of pique that can hurt the markets for secondary works. But their reasons for asserting copyright can be the subject of reasonable disagreement (example, colorized films). All that’s a peppercorn compared to the historic abuses of copyrights controlled by publishers and disseminators.

The present tension between consumers and copyright is predated by a centuries-old war between publishers and authors. Those who read this site ought think carefully about how often the public and authors are actually on the same side.

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BlackWhite http://www.lessig.org/2004/08/blackwhite/ http://www.lessig.org/2004/08/blackwhite/#comments Fri, 06 Aug 2004 04:49:18 +0000 http://lessig.org/blog/2004/08/blackwhite.html Every so often someone defends, with a straight-face, that which we think undeniably wrong. They say, for example, that the holocaust never happened, or perhaps that slaves actually liked slavery, or that some degree of torture is fine as government policy. Orwell called this ability “Blackwhite,” or “a willingness to say black is white when party discipline demands this.” In its advanced form it leads to “the ability to believe that black is white, and more, to know black is white, and forget that one has ever believed the contrary.”

Michelle Malkin, a journalist, has released a book that is does just this: it defends the eviction and incarceration of more than 70,000 American citizens during World War II. Her book “In Defense of Internment,” takes the position that the Government was right to round up the Japanese then, and Arab-Americans now. The mainstream position that the internment was wrong (expressed in Ronald Reagan’s apology), Malkin attributes to a “conspiracy.”

It is true that, on rare occasion, something everything takes for granted is wrong, like, say, the Bohr model of the Atom. But more often, moral sense is restored by rebuttal — we remember that black is, in fact, black, and regain our senses. This time sense is restored by this week’s must-read Volokh Conspiracy which features two historians who destroy the book in every aspect. Malkin, it turns out, is more Ahmad Chalabi than Albert Einstein.

As historian Greg Robinson concludes, “Malkin’s book is not a useful work of history, but a polemic that relies for its attraction on sensationalism and overstatement.” Or in the words of Eric Muller, “A person certainly can ‘provoke debate’ (uninformed debate, at least) by going about things in this way. But a person can’t “correct the record” in this way, or report history in a way that anyone ought to believe. It’s just not possible, and it’s not credible.”

But there is more than historical accuracy or the career of a silly journalist at stake. The role of the Constitution in wartime is defined by a consensus that Korematsu was wrongly decided. Thankfully, that consensus is unlikely endangered by this soon-to-be-forgotten leaflet. If you want to be radical, you have to actually be good.

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Reasons http://www.lessig.org/2004/08/reasons/ http://www.lessig.org/2004/08/reasons/#comments Wed, 04 Aug 2004 02:54:43 +0000 http://lessig.org/blog/2004/08/reasons.html Years ago, when I was a law clerk, I was impressed by how much Judge Posner could accomplish with one simple question. He would ask, “What exactly is the purpose of this law (or proposed rule)?” It was astonishing how often lawyers would stare or gasp, unable to answer this most basic of questions.

I think the least you can ask of government, whatever branch, is that it always have an answer to Posner’s question. When acting on behalf of the public, it ought always have a clear reason for what it is doing, that it can articulate without shame, sloganeering, or reliance on non-existent evidence. Is that too much too ask?

Yet so often Government is failing this simplest of tests. Copyright, our favorite topic, is full of stuff that lacks what lawyers call a rational basis. If you really ask — what does it accomplish to extend copyright on existing works by 20 years? How does that promote the progress of Science? There just isn’t, and wasn’t an answer.

Or this weekend, as the Adminstration put the nation in a state of fear with heightened terror warnings. We should expect a reason, and good reason. Fear is very expensive. But we read instead that years-old evidence justified the action? We’re not in a position to know better, but why can’t the Administration explain why it is doing what it does? Why can’t it give reasons for its actions that don’t insult our intelligence?

Or consider the Supreme Court, which in Blakely, seemed to strike the sentencing guidelines and created chaos in the district courts. Again, to what end? Can the Court even articulate what it thinks it is accomplishing?

I don’t think Government by reason is too much to ask for. But it certainly isn’t what we’re getting.

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The Copyright Gap http://www.lessig.org/2004/08/the-copyright-gap/ http://www.lessig.org/2004/08/the-copyright-gap/#comments Sun, 01 Aug 2004 18:18:21 +0000 http://lessig.org/blog/2004/08/the_copyright_gap.html Here’s the hypothesis: Today’s telecom and copyright laws often regulate similar subjects, but with a big difference. The telecom laws slightly favor market entrants, while the copyright laws favor the incumbent disseminators. The result is a “copyright gap” that grows larger every day.

Imagine you’re a startup, a market entrant, with a new way of getting information to people. Would you want to enter a market regulated by copyright or the telecommunication laws?

Under U.S. telecommunications law, you’ll likely be unregulated as compared to the your incumbent competitors. That’s what made Vonage a success–it doesn’t face the rules that control Verizon. It also what made AOL a success in the 1990s and WiFi in the 2000s. The only thing you need to fear today is possible network discrimination, though the net neutrality movement and Michael Powell’s threats have helped keep that in check.

Yet if you happen to fall under the copyright laws — you have a better way of delivering material that’s copyrighted — the structure of copyright says you need the permission of the market incumbents to carry on a regular business. Think of the story of internet radio, or KaZaA, iTunes and so on.

The result: The Copyright Gap. We have great, competitive VoIP and email markets, but still don’t have much in the way of Internet TV, video-on-demand, or the giant internet libraries once promised. Now obviously there are some justifications for this regulatory disparity, but to my mind not particularly convincing ones.

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wireless blog launched http://www.lessig.org/2004/06/wireless-blog-launched/ http://www.lessig.org/2004/06/wireless-blog-launched/#comments Sat, 05 Jun 2004 15:41:02 +0000 http://lessig.org/blog/2004/06/wireless_blog_launched.html http://www.wirelessunleashed.com.]]> Kevin Werbach, who was at the FCC, and then worked with Esther Dyson, and will soon begin teaching at the Wharton School, has launched a group blog about unlicensed wireless issues. Check it out at http://www.wirelessunleashed.com.

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jailhouseblog help? http://www.lessig.org/2004/05/jailhouseblog-help/ http://www.lessig.org/2004/05/jailhouseblog-help/#comments Mon, 31 May 2004 14:00:52 +0000 http://lessig.org/blog/2004/05/jailhouseblog_help.html email address by June 7 if you're willing to help. UPDATE: Ok, my inbox is flooded with great volunteers. Thanks to everyone who did volunteer. More here when we get it going.]]> A journalist friend of mine has been writing about prisons. She has discovered in the process an extraordinary wealth of amazing and reflective writing by prisoners. I’d like (and they’ve agreed) to turn some of this writing into a blog, since the prison won’t permit them to publish the writings in the prison paper.

Is anyone game to help? I’d send you (by snail or fax) copies of the essays; you’d be a contributor to the blog by posting what was written, and adding comments of your own. I’d only need a couple volunteers to make this possible. I’m happy to host the site and pay for the MT interface (yes, I’m HAPPY to pay for MT).

Email me at this disposable email address by June 7 if you’re willing to help.

UPDATE: Ok, my inbox is flooded with great volunteers. Thanks to everyone who did volunteer. More here when we get it going.

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FAQ on The Anarchist in the Library http://www.lessig.org/2004/05/faq-on-the-anarchist-in-the-li/ http://www.lessig.org/2004/05/faq-on-the-anarchist-in-the-li/#comments Wed, 05 May 2004 11:38:55 +0000 http://lessig.org/blog/2004/05/faq_on_the_anarchist_in_the_li.html The Anarchist in the Library (Basic Books, 2004)

Q: This is a very provocative title. Who is the anarchist and where is the library?

SIVA VAIDHYANATHAN:
The anarchist is a specter. It�s a symbol of an imagined threat. There are powerful forces trying to close up our information worlds so they can control its flows and charge admission. To accomplish their goals, they raise fears about �anarchists in libraries,� uncontrollable, dangerous forces threatening us from within. The library is a metaphor for our information ecosystems. I argue we should be as careful with our information ecosystems as we should be with our real ecosystems. Small changes can have huge effects.

Q: Could tell me today how the forces of anarchy and control play out today in the world of information?

SIVA VAIDHYANATHAN:
Our information systems are being driven to extremes of anarchy and oligarchy. The forces of anarchy — hackers, and cyber-libertarians, and, increasingly, plain old liberals are — doing their best to pry open information systems. They want to let data and culture flow freely around the globe. They’re doing this in the shadow of some rather extreme actions by the information oligarchs. The information oligarchs include big media companies, powerful governments, and police forces. These forces have an interest in making information scarce so they can charge more for it, and labeling it as contraband so they can limit conversation and deliberation.

We�re seeing this first and most clearly in the entertainment world. We’re seeing extreme interventions in our information infrastructure, notably from Hollywood studios and music companies. For instance, increasingly the formats and delivery systems for cultural products are highly controlled.

The DVD is the best example. Now, the DVD is a wonderful product, it does a lot of things. But it is highly controlled. We are extremely limited in what we can do with the data on that disk. There are fairly strong locks on every DVD. This is one of the reasons that we can’t play a French DVD in the United States or any DVD on a LINUX-based computer. The movie companies have decided that to differentiate their markets among certain regions � they must build these controls into the disk itself. This sounds like a small price to pay, but the problem is these sorts of moves spark an arms race.

There are a lot of people who are offended by this level of control. And they are using whatever means necessary to free the data. So we’ve created a situation through this combination of excessive copyright laws and strong technology. Hackers move to pry such systems open and apart. Then oligarchs respond with harder technology and more radical laws. So the hackers pry the stuff open once again. It continues ad absurdum. Those of us who don�t support either anarchy or oligarchy are stuck, baffled and frustrated. We pay the price for the excesses of both sides.

We have generated a situation in which it’s harder than ever to make legitimate use of information technology and copyrighted products and easier than ever to make illegitimate use of cultural products.

Q: Are there historical precedents for this dynamic?

SIVA VAIDHYANATHAN:
Yes. This dynamic is not necessarily new, but it is more powerful and more relevant than any time in the last two centuries. The last time that we saw this tumultuous interplay between anarchy and oligarchy was in the 18th century. The standard story is that enlightenment philosophers instilled a sense of potential and liberty into an emerging middle class in France. And the emerging middle class unified with an oppressed lower class and overthrew the royal regime.

Well, that’s not the whole story. There’s more to it. In fact, the power of gossip, the power of unmediated, irresponsible communication is central to the story because it helps to explain how the French Revolution went so horribly wrong. The fact is that ordinary citizens in France before the revolution were adept at evading the surveillance of the state. It was an almost necessary daily habit. They used to gather throughout public places in Paris and elsewhere and exchange gossip–unflattering, probably untrue stories about life in the royal court.

This practice helped undermine faith in the French monarchy and it certainly helped spread the fertile soil of revolution. By the time France was ready to erupt, everyday people had long since abandoned any pretension of respect for the crown. What we learn from this is that anarchistic gossip has huge consequences. Peer-to-peer communication in that unmediated, uncensorable sense has always been with us.

In the relatively small area of the world that is France, anarchistic communication was particularly important in the late 18th century; now it’s important everywhere. Today, the effects of information anarchy and information oligarchy are seen in the Philippines, where everyday people used text messaging to help overthrow a corrupt president. We are seeing it in Saudi Arabia where dissidents, both of the religious extreme and the democratic middle are using cassette tapes and the Internet to spread their messages.

We’re also seeing it in China where dissidents, both religious and democratic, are using the Internet, encryption, and proxy servers to spread dissatisfaction with the state. Now, this is something we should celebrate. But we should be concerned about the fact that some bad people use the same technologies for very bad purposes. Child pornographers and terrorists can use the power of distributed systems, strong encryption, and proxy servers to hurt people. We should also be concerned about the fact that oppressive states get to use the very same methods to restrict flows of information that some would like to see us use in this country to stop my students from sharing music.

Q: But today, gossip can now spread instantaneously–in a matter of minutes. Does that make anarchy more dangerous than previous centuries, or not?

SIVA VAIDHYANATHAN:
Well, I think anarchy is far more relevant than ever before. It’s central to our daily lives. It’s central to our collective imagination in ways that we haven’t quite come to terms with. Even though most of us are not anarchists, we participate in anarchistic practice more and more every day. We do so by using the Internet, using text messaging, and communicating globally. These habits of mind are becoming more prevalent. You can see it in business and management culture. You can see it in popular culture. And you can see it in political culture. The usable, reasonable middle path is getting harder to find.

We do have some obvious recent examples of applied anarchy, such as the 1999 demonstrations against the World Trade Organization in Seattle. But what’s more interesting to me are the ways that everyday, rather a-political people are sort of dancing with anarchy in a way that isn’t necessarily dangerous, but could grow dangerous over time– if the forces of oligarchy continue to ratchet up the stakes. The arms race drives reasonable people to accept the unreasonable, moderate people to dabble with the extreme. -

Q: You began your research for this book before Sept. 11, 2001. Did the attacks alter your research or your perspective on this topic?

SIVA VAIDHYANATHAN:
Yes. The book was supposed to be about the entertainment world. It was supposed to be about how Napster and other peer-to-peer systems were threatening or altering Hollywood and the recording industry. After the attacks of 2001, it became really hard to care whether Metallica was making any money.

I had to stop writing and trash a lot of what I’d already written. I needed to do some rethinking about what I was seeing in the world. Soon after 9/11, it became clear that �information warfare� was going to be a central part of the next few decades of our lives. So I figured I should keep an eye on the ways in which an increasingly intrusive state was managing information, and try to draw a connection with my other areas of research and concerns. And I started to worry about the rhetoric that was emerging immediately after 9/11. I worried about the new calls to restrict access to the Internet in public libraries and the availability of strong encryption.

I started to worry about the USA Patriot Act. I started to worry about Total Information Awareness and the Pentagon’s propaganda efforts. I was particularly concerned that many people in powerful positions were interpreting the enemies of the United States to be like digital networks such as Napster. I felt this was an harmful association. Such metaphors allow us to evade what’s really important about both of these important systems. Napster and peer-to-peer technologies are about cultural disorganization. Al Qaeda is actually a top-down movement dedicated to violent ends. These two phenomena are distinct both in nature and scale. I thought it was insulting to those who had lost loved ones in the attacks of 2001 to associate something so deadly with something so benign.

And I also thought it was fundamentally dangerous to play with metaphors simply because they’re available to us. I tried to emphasize the point that while globally distributed yet coordinated bad actors are a relatively new and misunderstood factor in the world, they don’t actually resemble computer networks. We aren’t fighting �Net Wars,� or we shouldn’t fight �Net Wars,� because these enemies are real, they’re not virtual.

Q: How you conclude we address this dilemma?

SIVA VAIDHYANATHAN:
I think we really have to explicitly invest in a celebration of cultural democracy. What I mean by that is we have to recognize that people who are not powerful should have the right to play with the cultural signs around them. We shouldn’t lock up expressions, symbols and information and assign it to corporations and governments without a full and fair examination and justification. We have been fencing in our information for more than a decade now. If we would break down a few fences, we could relieve the pressure and release some profound creativity that can help us see new ways to deal with these frightening new problems in the world. We could begin to address problems of globalization, problems of maldistribution and problems of unpredictable violence. These problems require fresh thinking from those who have not yet had a chance to speak up. So cultural democracy is a necessary, but insufficient, step in solving these problems.

The other half of the solution is recognition of civic republicanism, a recognition that even though we will allow a high measure of freedom in our information worlds, we must have a rich discussion of values and virtues. Values and virtues are central to republican theory going back as far as the Roman stoics. Unfortunately American political culture, and increasingly global political culture, is infected with themes of either radical individualism or radical corporatism. And neither one of these perspectives are going to make us a better species.

Q: The controversy over file sharing of music appears to serve as a case study of this phenomenon. What does your book say about this?

SIVA VAIDHYANATHAN:
We should learn from the mistakes of the music business that we shouldn’t jump to conclusions about something so essential as the free flow of culture and information. We shouldn’t panic and we shouldn’t rush to judgment. A couple of years ago it was fashionable to whine about the inevitable extinction of the major commercial music. A sober examination of the state of the music business will tell us that while there’s been a slump between 2001 and 2003, it’s not a more significant slump than many major American industries have encountered.

It’s no worse than the slump the music industry experienced in 1983 through 1984, and it’s no worse than what the music industry experienced in 1992 and 1993. Those were actually worse years than what we’ve seen in the past two years.

So the real question is, why did the music industry do so well in the late 1990s and in 2000. There are a lot of reasons why the music industry did well in ’99 and 2000, not least of which was the emergence of N�Sync, the Backstreet Boys, Christina Aguilera, and Britney Spears — major hit-makers that forced parents to drive their 12-year-olds to the mall. This spurred a whole lot of music-buying by the American consumer. But those were unique times.

Since then, we’ve been getting back to normal. Now, that’s not to minimize the pain that’s going on right now among, first and foremost, record store owners and, secondly, songwriters, musicians, music lawyers and accountants. Those folks are not doing as well as they had hoped. But it’s not as many as one might think. In fact, if every download of peer-to-peer equaled a lost sale, there would be no music industry in 2004; it would have been completely wiped out. That’s not the case. This isn’t a zero sum situation. Now, the music industry in the past couple of years has proposed some rather extreme measures to deal with what is a complex problem, a problem that involves the recent recession, the popularity of DVDs and video games and shifting musical tastes.

All of these factor play a part in the success or decline of the music industry. But all that industry leaders have done is suggest radical technological moves or simplistic legal moves. They have tried to gain permission to hack into our private computers and networks to shut down the distribution of what they suspect is illicit. This of course would be done without any due process. Media companies have managed to convinced Congress that they should be able to subpoena the identity of network users without ever filing a lawsuit. You know, this is a radical departure in civil law. They have asked for exceptions to anti-terrorism and anti-hacking laws that would allow them to do what we hope independent hackers and terrorists wouldn’t do.

These sorts of extreme measures have made it clear to the music-loving public that those who run the music industry don’t respect them. They don’t respect creativity, they don’t respect democracy, and they don’t respect their customers. So it�s understandable that consumer and citizens deny respect right back.

So the moral of this story is that we should be patient with the effects of technological change. We should be aware of the cultural habits that are relatively unchanged over time�such as the propensity to share music. We’ve always shared music. And we should– wait until all the facts are in before we suggest radical policy moves.

I actually applaud the music industry for filing civil lawsuits against copyright infringers. And I do this because I think copyright should be worked out in the civil courts. I think that when you sue somebody, you’re at least giving that defendant a chance to due process, a chance to defend herself. And that’s healthier than trying to make all of the regulatory decisions within the technology itself. So I hope that the last few years have taught the music industry ease up on techno-fundamentalism , the idea that every problem can be solved by technological advances, and invest, once again, in real humane regulation like traditional copyright.

Q: How do you get from an analysis of the music industry to an account of globalization?

SIVA VAIDHYANATHAN:
Well, the music industry is global. Music flows globally, whether through legitimate channels or not. Communication is getting more anarchistic every day, thanks to the proliferation of these radical technologies. So it�s not hard to show that some of the same battles that have played out in the entertainment world will soon apply to global politics. That�s why I say this book is about global information politics.

Q: What is at the root of these misunderstandings?

SIVA VAIDHYANATHAN:
In the book I explore a phenomenon I call “technofundamentalism,” the persistent ideology that tells us that a new machine will solve all the problems that the last machine created. Technofundamentalism overpowers discussions externalities and unintended consequences. One sees technolfundamentalism most significantly in business and management discourse, where one must be “at the vanguard” of technological change or risk extinction. George Gilder, Virginia Postrel, and Kevin Kelly are the most notorious technofundamentalists writing today. Their ranks include Bill Clinton and Newt Gingrich. Technofundamentalism is a forward-looking ideology, and is thus distinct from technological determinism, a historical frame of reference.

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thoughts on Bunner http://www.lessig.org/2003/08/thoughts-on-bunner/ http://www.lessig.org/2003/08/thoughts-on-bunner/#comments Tue, 26 Aug 2003 15:23:53 +0000 http://lessig.org/blog/2003/08/thoughts_on_bunner.html here and worth a read. Two points, one annoying and one important. Annoying first: Gaggles have written me asking how is it that if "code is speech" the First Amendment doesn't guarantee that code can't be regulated? This is an argument that has been around for a long time, and its staying power is something I don't quite get. Sure, code is speech. But why do you think speech can't be regulated? Mickey Mouse is speech. But just try posting copies of Mickey Mouse films without Disney's permission, and you'll see how far that gets you. The truth is, the Constitution notwithstanding ("Congress shall make no law..."), Congress (and states) make law all the time regulating speech. Thus, calling it speech is just a first step in the analysis. The real question is what burden the government must bear in justifying the regulation. Important second: The court assumed a bunch of important facts. In particular it assumed: "First, the court concluded that the CSS technology contained protectable trade secrets because it derived independent economic value from its secrecy and because DVD CCA made reasonable efforts to maintain its secrecy. Second, the court found that Johansen had obtained these trade secrets through reverse engineering in violation of a license agreement and therefore acquired these secrets by improper means. Third, the court found that the defendants, including Bunner, knew or should have known that Johansen acquired these trade secrets by improper means when they posted DeCSS on their Web sites. Fourth, the court held that the trade secret status of the CSS technology had not been destroyed because it had been posted on the Internet." But the Court goes on to say (unanimously) that it was wrong for the District Court to simply assume these facts. Indeed, it was the duty of the District Court to independently determine whether each of these facts was true. If any of these facts is not true, then as a matter of trade secret law, there is no right to a preliminary injunction.]]> So like bored guests at a dinner party, everyone seems keen to change my subjects. (If I believed in smileys I’d insert one here, but I don’t.) So ok, let’s talk about what YOU want to talk about.

As you likely know, the Supreme Court of California has held that a preliminary injunction in a trade secret case does not necessarily violate the first Amendment. The decision was in the context of deCSS code that enabled the decryption of CSS protections for DVDs. The opinion is here and worth a read.

Two points, one annoying and one important.

Annoying first: Gaggles have written me asking how is it that if “code is speech” the First Amendment doesn’t guarantee that code can’t be regulated? This is an argument that has been around for a long time, and its staying power is something I don’t quite get. Sure, code is speech. But why do you think speech can’t be regulated? Mickey Mouse is speech. But just try posting copies of Mickey Mouse films without Disney’s permission, and you’ll see how far that gets you. The truth is, the Constitution notwithstanding (“Congress shall make no law…”), Congress (and states) make law all the time regulating speech. Thus, calling it speech is just a first step in the analysis. The real question is what burden the government must bear in justifying the regulation.

Important second: The court assumed a bunch of important facts. In particular it assumed:

“First, the court concluded that the CSS technology contained protectable trade secrets because it derived independent economic value from its secrecy and because DVD CCA made reasonable efforts to maintain its secrecy. Second, the court found that Johansen had obtained these trade secrets through reverse engineering in violation of a license agreement and therefore acquired these secrets by improper means. Third, the court found that the defendants, including Bunner, knew or should have known that Johansen acquired these trade secrets by improper means when they posted DeCSS on their Web sites. Fourth, the court held that the trade secret status of the CSS technology had not been destroyed because it had been posted on the Internet.”

But the Court goes on to say (unanimously) that it was wrong for the District Court to simply assume these facts. Indeed, it was the duty of the District Court to independently determine whether each of these facts was true. If any of these facts is not true, then as a matter of trade secret law, there is no right to a preliminary injunction.

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copynorms http://www.lessig.org/2003/08/copynorms/ http://www.lessig.org/2003/08/copynorms/#comments Thu, 21 Aug 2003 12:52:27 +0000 http://lessig.org/blog/2003/08/copynorms.html Copynorms", the "informal social attitudes about the rightness or wrongness of duplicating material that is copyrighted." Is there a convincing account of the source of these norms?]]> Lawrence Solum on “Copynorms“, the “informal social attitudes about the rightness or wrongness of
duplicating material that is copyrighted.” Is there a convincing account of the source of these norms?

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welcome spammers http://www.lessig.org/2003/05/welcome-spammers/ http://www.lessig.org/2003/05/welcome-spammers/#comments Thu, 22 May 2003 16:49:20 +0000 http://lessig.org/blog/2003/05/welcome_spammers.html Dear Spammer:

I don’t have much time to read emails, and I especially don’t have much time to read unsolicited commercial emails. But I have decided to make an exception. If you would like to send me unsolicited commercial emails, then I agree to read them on the condition that you promise to pay me $500, and subject to the additional conditions mentioned below. You can accept this offer by sending unsolicited commercial email to me at mailto:make-my-day-q2wxe4q1@pobox.com.

In accepting this offer, you also agree (1) to be subject to the laws of California for the purpose of enforcing our contract, (2) to pay any costs, including attorney fees, incurred in enforcing our contract, (3) to pay your obligation under this agreement within 10 days of sending the email, by mailing a check to me at the address referenced in the Contact section of this site, and (4) to accept service and costs associated with any bill collector that I hire to help collect obligations owed me under this contract.

Good luck with your business.

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REDUCE Spam Act http://www.lessig.org/2003/05/reduce-spam-act/ http://www.lessig.org/2003/05/reduce-spam-act/#comments Thu, 01 May 2003 19:57:50 +0000 http://lessig.org/blog/2003/05/reduce_spam_act.html REDUCE Spam Act. That Act is in part based upon the idea that I have bet my job on. This has led some friends to write that they hope the law is not passed -- some because they believe it won't work, some because they don't like this or any regulation. To the first group, I appreciate the concern, but remain unworried. To the second, I understand the concerns, but remain convinced. The general idea of the statute is that spammers must label UCE, and if they don't, then the law enables a bounty system to pay people who hunt down those who fail properly to label. I've been getting lots of questions about how this would work, and as many are similar, it would obviously help to post a FAQ. It would be great to get more questions beyond the first wave, and a FAQ would certainly help. This final draft does have a nice modification that was suggested by a particularly skeptical friend. The label requirement initially is a simple ADV: in the subject line. There are obvious problems with mandated protocols, and so the modification requires either an ADV: or "an identification that complies with the standards adopted by the Internet Engineering Task Force for identification of unsolicited commercial electronic mail messages." This is a nice modification that both creates an incentive for the development of other protocols, but vests that process within a body that so far has resisted capture. I was originally worried that any industry standards group would be open to capture. But I have lots of confidence that the IETF will be able to suss out spammers. The key to this idea is, as Congresswoman Lofgren puts it, that the Act would enlist a bunch of 18 year olds in the battle against non-complying spammers. "Between the 18 year olds and the spamsters," as she puts it, "I'll bet on the 18 year olds." Me too.]]> Congresswoman Zoe Lofgren today introduced her REDUCE Spam Act. That Act is in part based upon the idea that I have bet my job on. This has led some friends to write that they hope the law is not passed — some because they believe it won’t work, some because they don’t like this or any regulation. To the first group, I appreciate the concern, but remain unworried. To the second, I understand the concerns, but remain convinced.

The general idea of the statute is that spammers must label UCE, and if they don’t, then the law enables a bounty system to pay people who hunt down those who fail properly to label. I’ve been getting lots of questions about how this would work, and as many are similar, it would obviously help to post a FAQ. It would be great to get more questions beyond the first wave, and a FAQ would certainly help.

This final draft does have a nice modification that was suggested by a particularly skeptical friend. The label requirement initially is a simple ADV: in the subject line. There are obvious problems with mandated protocols, and so the modification requires either an ADV: or “an identification that complies with the standards adopted by the Internet Engineering Task Force for identification of unsolicited commercial electronic mail messages.” This is a nice modification that both creates an incentive for the development of other protocols, but vests that process within a body that so far has resisted capture. I was originally worried that any industry standards group would be open to capture. But I have lots of confidence that the IETF will be able to suss out spammers.

The key to this idea is, as Congresswoman Lofgren puts it, that the Act would enlist a bunch of 18 year olds in the battle against non-complying spammers. “Between the 18 year olds and the spamsters,” as she puts it, “I’ll bet on the 18 year olds.”

Me too.

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Channel announcement: Media Concentration http://www.lessig.org/2003/04/channel-announcement-media-con/ http://www.lessig.org/2003/04/channel-announcement-media-con/#comments Sat, 26 Apr 2003 14:39:38 +0000 http://lessig.org/blog/2003/04/channel_announcement_media_con.html On June 2, the FCC is scheduled to release new rules governing media ownership. The expectation is that the revised rules will remove limits on media concentration. The consequence of that change will be an extraordinary increase concentration, in an already concentrated industry.

These issues are hard. Big is not necessarily bad. Change in media structure is not necessarily corruption of media content. But the more I have read about creators worried about this increase in concentration, the more I have looked at this issue.

Surprisingly or not, the issue of media concentration is not being covered adequately by the media — that same media that will be affected by the changes in these rules. So that makes this ripe for the media in this space.

I’ve got a bunch of stories and statistics to report, and will. But this is something we need many many voices to report. Where else will the news not fit to print get printed — except in weblog space?

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the fight for semantics http://www.lessig.org/2003/04/the-fight-for-semantics/ http://www.lessig.org/2003/04/the-fight-for-semantics/#comments Sun, 20 Apr 2003 17:54:20 +0000 http://lessig.org/blog/2003/04/the_fight_for_semantics.html Semantic Blog. One part he missed was the emergence of CC licenses as part of the semantic blog space. Movabletype and Userland now both incorporate CC license options. The technique we've used with html has been questioned, but we are pushing hard to get RDF out there. What's needed is a killer app, and here's where the powerful need to be responsive. Google in particular has not been receptive to becoming RDF-aware, making it harder to build the amazing Google hack that would enable a search such as "give me all the pictures of the Empire State Building available under a non-commercial license." Perhaps here's where competition between AllTheWeb, or Yahoo and Google may do some good. Some say the reasons Google remains Semantic-ly-unaware are dark -- that in a world of articulate pages, it is harder to be the dominant search engine. I'm not willing to believe this yet. I suspect instead that it is up to us to spread the semantic word, and then others will find more reason to pay attention to it.]]> Jon Udell’s got a nice piece about the emergingly Semantic Blog. One part he missed was the emergence of CC licenses as part of the semantic blog space. Movabletype and Userland now both incorporate CC license options. The technique we’ve used with html has been questioned, but we are pushing hard to get RDF out there.

What’s needed is a killer app, and here’s where the powerful need to be responsive. Google in particular has not been receptive to becoming RDF-aware, making it harder to build the amazing Google hack that would enable a search such as “give me all the pictures of the Empire State Building available under a non-commercial license.” Perhaps here’s where competition between AllTheWeb, or Yahoo and Google may do some good.

Some say the reasons Google remains Semantic-ly-unaware are dark — that in a world of articulate pages, it is harder to be the dominant search engine. I’m not willing to believe this yet. I suspect instead that it is up to us to spread the semantic word, and then others will find more reason to pay attention to it.

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