August 16, 2004  ·  Tim Wu

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?

August 11, 2004  ·  Rick Boucher

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.

August 8, 2004  ·  Tim Wu

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.

August 5, 2004  ·  Tim Wu

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.

August 3, 2004  ·  Tim Wu

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.

August 1, 2004  ·  Tim Wu

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.

May 31, 2004  ·  Lessig

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.

May 5, 2004  ·  Siva Vaidhyanathan

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.

August 26, 2003  ·  Lessig

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.