August 21, 2003  ·  Lessig

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?

May 22, 2003  ·  Lessig

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.

May 1, 2003  ·  Lessig

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.

April 26, 2003  ·  Lessig

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?

April 20, 2003  ·  Lessig

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.

April 20, 2003  ·  Lessig

Matt’s got a wonderful brace of posts (have we determined what the collective noun for web log posts is yet?) Thursday that reports a question and then a story to answer it.

In his first post, Matt usefully draws together a bunch of current perspectives on the compulsory licensing debate. In his last paragraph, he writes “I’m doubtful that compulsory licensing actually solves the right problem, but I’m curious about what problems led to compulsory licensing in the past.”

There’s been lots written about this, though none that has yet penetrated the policy debate. (I discuss this in two chapters of my book. Here’s a pdf
of the final (uncorrected) draft of those two chapters. Acrobat is on the fritz on my machine, but when I’ve fixed it, I’ll replace this with chapters directly from the book.) The Cliff Note version is that new technologies for distributing content have created the need for a compulsory license.

But then in the second post, Matt provides the best example of just why compulsory licenses have been used in the past. He tells the story of the demise of ReplayTV, which, in large part was caused by the extraordinary burden of litigation that company has had to bear. For years that company has been in litigation defending the right to deploy a digital version of the VCR. The consequence (in part) of that burden is that the company was forced into bankruptcy.

Again, many have written about the insanity of a system that forces new innovators to go to a federal district court to defend the right to innovate, and again, many have written that the real meaning of the Sony Betamax case was that we should allow innovation first (so long as there is a “potential for a substantial non-infringing use”) and let Congress deal with balances later on.

But the key insight from the Sony Betamax case that should have resolved the ReplayTV case quarters ago was that Congress has in the past used lots of tools to “rebalance” the rights of creators in light of new technologies. That should be its role in the future too — its role, not the courts. Congress can work out systems of compensation to assure artists get paid, without giving the dinosaurs of last century control over the innovation today. Or again, compensation without control.

April 20, 2003  ·  Lessig

JD Lasica has a nice pointer to a story about progress in the digital watermarking debate. He wonders about this progress because of work (in part by Ed Felten) suggesting “that all such encryption systems can be defeated.” But there is an important distinction that this debate needs. I’m a strong supporter of flawed (in the sense of defeatable) watermarking. Here’s why:

A watermark is a tag. If it is to work, it needs to be strong enough to resist reasonable incentives to remove it. What incentives are “reasonable” depends upon what the watermarking system is for. (Think of the difference between UPCs on a box of cereal and those chunks of plastic and steel on clothes in a department store.)

The DRM reason for watermarking is to enable digital locks to control access to digital content. The incentives to pick those locks will be strong — especially if prices for content remain high.

But some watermarks enable systems other than locks, and for those, there is very little reason to remove the watermark. These watermark systems in turn can afford to be weak.

For example, William Fisher’s proposal (outlined by Derek Slater here) for compensating artists depends upon a watermarking system. But there would be very little incentive to remove the watermark from the digital objects because the object is free anyway.

Or again, we at CreativeCommons have been presented with lots of useful and clever ideas for marking digital content to enable a simple link to the CC license. As CC licenses are meant to enable the expression of freedoms, not the mechanization of control, there’s again little incentive to remove those tags.

If we had a world filled with weak watermarks (again, like UPCs on products), that would tilt evolution towards systems that depended upon expression rather than control. Some of those systems would benefit compensation regimes (Fisher’s and others); some would enable “some rights reserved” regimes, like Creative Commons. But the more such alternative regimes that we can produce — alternative to the CONTROL model of DRM — the better.

We can have compensation without DRM control. We can have a respect for rights (Creative Commons) without building “the police state into every computer,” as Intel’s Craig Barrett so nicely put it.

April 8, 2003  ·  Lessig

I was one of the “fretters” (as Declan called us) at CFP in New York last week. By “fretters,” Declan means people who “lose perspective” on issues like media concentration, and threats to privacy. “Perspective,” in turn, means recognizing the “tremendous difference” between actions taken by the government and those taken by private corporations. Who exactly doesn’t understand that difference isn’t clear from the article; nor is it clear for how long this “tremendous” difference will remain “tremendous,” as increasingly corporate databases are essentially the government’s (TIA). But no matter: whatever the threat CFP-ers were worried about, there’s apparently *still* nothing to worry about (as of course, Declan’s had this same line in his copy-buffer since I first met him at CFP97). The free choices of the market will allow everyone to choose any problem away (when we will get around to that happy set of choices, though, is not yet clear.)

Declan did criticize me for invoking “1970s rhetoric” when talking about media concentration. I’m still not quite clear what exactly that means. I was criticizing media concentration, which on any measure, is massively greater today than in any period in our history. In 1992, 70% of prime time television was produced by independent producers; today, 75% is owned by networks. There are 91 “major” TV markets; 80% of them are owned by 6 companies. In 1947, 80% of newspapers were independent; that number is below 20% today. In the 1970s, 10% of first run films in theaters was foreign; that number today is less than .5%.

Add to this concentration (1) the expansion in copyright terms, (2) the expansion in copyright’s scope, (3) the expansion in copyright’s reach [ie, to anyone with a computer], and (4) the explosion of technologies protected by DMCA-like laws, and you clearly get, imho, something to be concerned about. It *might* be that all this doesn’t matter, and no doubt, we should keep this in perspective, Declan. But from what perspective is this a happy story?

Anti-fretters are apparently convinced that everything’s just great because now we’ve got “satellite TV, satellite radio, DVDs, CDs, video-on-demand, hundreds of cable channels, movie rentals and … the Internet.” But of course, no one is saying there are fewer *outlets* for media; the claim is that there are fewer “independent” outlets for media. Six companies, which if the media cap rules are relaxed, could well be three.

Should we be worried about this? As I said to Nick Gillespie (whom I had not met before and who is brilliant), my bias has always been not to be worried. I’m a fan of Judge Posner. He’s done lots to slay “big media” myths. And in this contexts, as well as many, big is not necessarily bad.

But the more I hear from people who know something about what the process of creativity is actually like, the more I am concerned. Gillespie says the artists have always been whiners. Maybe. But the “innovator’s dilemma” applies to culture as much as to commerce. Yet we have more reason to be worried about its application to culture than to commerce.

Maybe there’s nothing to be worried about. Maybe the market will make it all turn out just fine. Maybe this really is the best of all possible worlds. Or maybe this is the one issue which my sparring partner has gotten right. As he testified when arguing against relaxing rules requiring independence in programming, he predicted “[t]hey would assert their fiscal authority in such a way that literally three people would have complete authority over what is seen in homes � a monopoly in television never before comprehended or tolerated in this country. … No one industry, no single entity, no group of enterprises ought to be allowed, by special grants of congressional privilege, to dominate the marketplace �. The losers in that ungainly arrangement are consumers��always, every time.”

Who is this defender of diversity and opponent of concentration? The amazing Mr. Jack Valenti.

April 6, 2003  ·  Lessig

After my talk at CFP on Friday, some smart soul asked me a question that I answered quite stupidly. He asked whether part of the problem we face cames from a “naive” opposition to regulation. This was an argument I had made before in Code, and I was not eager to engage it again. But the right answer is yes: there is still a need balanced and useful regulation. The one (but only) sense in which Declan is right is that none of the regulation we’ve seen so far is either balanced or useful.

But that does not mean that balanced and useful regulation wouldn’t do some good. As I go through my morning mail (I counted today: 83% of messages received in the past 24 hours is spam), I am reminded of an especially useful set of regulations that Congress should enact immediately to save email from the sludge that buries it. I’ve bet my job on one solution. But whether that solution or another, this is something Congress should do soon.

March 31, 2003  ·  Lessig

Ed Felten has a wonderful piece about the idiocy in the mini-DMCA’s being considered by a number of state “governments.” What is so frustrating about this business is not the people (like these governments) who disagree with you. But that their disagreement reveals that they have not done anything to understand the issue. We are over 5 years into this battle, yet these laws look like they have been drafted by people who have lived on another planet these past 5 years.