October 21, 2003  ·  Lessig

Jim Garrison writes to report the launch of a project that uses my three favorite things (THINGS): free software, Creative Commons licenses, and RDF. Gnomoradio.org will “create an online network where artists can promote and share their music freely and willingly.” As its announcement explains, it is built on gpl’d software, and gives artists the ability to generate “an Internet address (a URL) that will point to information about the song, a machine-readable license, a method of verifying the downloaded song, a link to the artist’s web site, and information about purchasing any available recordings of the song.” More discussion.

Let free compete with controlled, and let’s see who wins.

October 20, 2003  ·  Lessig

As Michael Geist writes, it is increasingly the practice of the US government to export its copyright policy though bi-lateral trade agreements. One example is the trade agreements being concluded with Australia right now that will require Australia to increase its copyright term to life plus 70.

The Allen Consulting Group has prepared what it apparently considers an economic analysis of the proposed Term Extension. The report was commissioned by the Motion Picture Association, among others. The report is embarrassingly poorly done.

I describe some errors in the extended entry below. But I hope for the Allen Consulting Group that this report is not representative of its work in general.

While the report describes a 1989 article by Posner/Landes as the “major theoretical contribution” to the analysis of term extensions, the most striking feature of the Allen report is its failure to address the arguments made by 17 economists, including 5 Nobel prize winners, in the brief submitted in Eldred and then published by AEI-Brookings. While that brief has been smartly criticized (though I believe erroneously, as I will describe in another post) by Liebowitz & Margolis, it certainly sets the framework for any economic analysis of term extension. (The Posner/Landes piece is about the length of terms generally, not term extension).

As Akerlof, et al., frame the analysis, the fundamental distinction in any consideration of term extension is the difference between extending existing terms, and extending terms prospectively. This distinction appears no where in the Allen Consulting Group report. Thus throughout the report, one is bounced around with arguments that are true for prospective extensions but false for retrospective extensions, and false for prospective extensions, but true for retrospective extensions. While the report cites the brief in a footnote and to accompany another cite, it nowhere addresses this core question that brief raises: Whether or not you believe extending terms in the future makes sense, what possible argument is there for extending terms for works that already exist?

In America, the answer to that argument was simple: Hollywood benefited. But what is the argument in Australia?

More frustrating is the pudginess of this argument that purports to be economics. There’s lots saying that both sides exaggerate their claims, but nothing to provide any actual evidence to evaluate whether any claim is exaggerated. And then, after acknowledging there is no useful actual evidence at all, the report concludes that on balance, the effect of the extension would be neutral, and so Australia should do it.

I’ve put some notes on the report here that you might find useful as you read through their argument. No doubt I’m not a neutral in this debate. But I only hope the Allen Consulting Group got alot of money for this report. It certainly won’t help its reputation as a firm that provides objective economic analysis.

October 20, 2003  ·  Lessig

Gregg Easterbrook wrote something on his blog that Roger Simon criticized for being anti-Semitic. It was also, as Glenn Reynolds points out, anti-Disney. The consequence of his writing was that Easterbrook was fired from ESPN (which is owned by The Mouse). Was the cause the anti-Semitism or the anti-Disney-ism?

As one of Easterbrook’s self-described “harshest critics” says, the firing was an over-reaction. I agree, though more because of the place than the substance of what Easterbrook said. Had Easterbrook been the announcer at a football game and made similar comments, I could well understand (and defend) ESPN’s decision to fire him. But a post in a blog is not a blast to 20 million people. No one would hold ESPN responsible; no one, so far as I can see, was even drawing a link to ESPN.

This leads Glenn Reynolds to suggest that it is another example of the consequences of the MediaCon.

Glenn has a point. ESPN’s actions are ambiguous, at least if you agree with Roger Simon that firing Easterbrook was an over-reaction. ESPN should resolve the ambiguity.

If ESPN fired Easterbrook because it overreacted to his comment, then that’s an injustice to Easterbrook, and a slight to society.

But it it fired Easterbrook because Easterbrook criticized the owner, that’s an offense to society, whatever the injustice to Easterbrook — at least when fewer and fewer control access to media. No doubt, anti-semitism has done infinitely greater harm than misused media mogul power. But if firing your critics becomes the norm in American media, then there will be much more than insensitivity to anti-semitism to worry about in the future.

October 20, 2003  ·  Lessig

There’s a nice piece in the Wall Street Journal’s E-Commerce Special “E-Commerce” Report about Creative Commons. The report describes three futures for copyright, with CC among the three. (The WSJ charges $350 for the privilege of linking to a web version of an article about your company, so rather than link, I’ll just describe the article (Does this really making you better off, WSJ?)).

The coolest part of the story is the first announcement of Creative Commons’ Sampling Licenses which will be launched in Brazil by Brazil’s culture minister, and cult figure, Gilberto Gil this December.

The Sampling Licenses say “sample my work if you want, even for commercial purposes, just don’t copy and sell my work without my permission.” It’s aim is to make explicit what whole genres of music presume — at least until you become famous. The idea was brought to us by Negativland and People Like Us.

Stay tuned for more about the release.

October 14, 2003  ·  Lessig

So imagine this: An employee works for a software company. He discovers a problem with the software, tries to warn the company, but it does nothing. He quits, and then sends email to all the customers of the company, informing them of the security problem with the software. The flood of emails brings the email server down for a bit, but that admittedly does not cause significant damage. Nonetheless, the employee is criminally prosecuted for causing an “impairment to the integrity” of a computer system (by revealing its flaws) which resulted in more than $5,000 in damage (because now it was known to be flawed).

The employee is found guilty. He is sentenced and serves (yes, he actually serves) 16 months in a federal prison.

In America, you ask? Well, in fact, yes — justice in the Central District of California. But it gets better.

On appeal, the employee retains Jennifer Granick, executive director of Stanford’s Center for Internet and Society. She argued the obvious point: it can’t be “damage” to tell the truth about some company’s software — however ugly that truth might be.

Today the government agreed. In an extraordinary (and extraordinarily rare move) it confessed error. “On futher review,” the government wrote, “in light of defendent’s arguments on appeal, the government believes it was error to argue that defendant intended an ‘impairment’ to the integrity of [X's] computer system.” The government asked that the conviction be vacated.

“In light of defendant’s arguments on appeal.”

Indeed, America: Where defendants sometimes get great lawyers, and where governments let justice admit it is wrong.

I am proud, and moved, by both.

October 10, 2003  ·  Lessig

It is so rare that I am in 100% agreement with the Cato Institute, but there have been important examples in the past (Eldred). Here’s another. There’s a great essay by Doug Bandow titled “Don’t Ban Technology to Solve Copyright Problems,” which appeared in the Washington Times but is not yet on Cato’s site here. Stay tuned, and stay right (as in correct) Cato.

October 10, 2003  ·  Lessig

Using machines to coordinate sharing content — that’s what this site is doing. And what they are doing is totally legal. Yet if the machines actually copied the content they shared, what they are doing would be a felony (according to some in the content industry). Does this trigger make sense?

October 10, 2003  ·  Lessig

This is good news (ok, not for Halderman but for the law). SunnComm says it is suing Alex Halderman (Ed Felten’s student) because he posted a paper pointing out the weaknesses in SunnComm’s copy-protection software. I’m sure there will be a world of legal support to help Halderman establish what should be an obvious point: tell the truth is not yet a crime, and (fortunately for most professors) writing even wrong papers is not either.

UPDATE: Oh well. Looks like SunnComm has come to its senses. No lawsuit after all.

October 9, 2003  ·  Lessig

I’ve been experimenting with Apple’s mail client, “Mail” (note to product development: generic names make it very hard to search on product specific information), and have been frustrated that an obvious function is not in Mail (or any other client I’ve seen).

The obvious function is the ability to define a hot key that will move a message to a specified folder. I had built (and had built) tools in Entourage to enable me to hit, say, ctrl+f, and the highlighted message(s) would be moved to the friends folder. I know you mice-on-the-brain sorts like to do that with the (insanely inefficient) drag function, but I like keys.

Anyway, I asked coder Jonathan Nathan whether he could help me out on this, and he put together a couple cool little Applescripts that get close. (He’s GPL’d them here).

The hard coded version lets you code in the name of a folder. The variable gives you a list of folders to toggle through. Both require a keyboard utility to invoke the script. And both face a similar problem: Sometimes the utility will “forget” which message is highlighted so it forgets which message to highlight next.

Both problems come from the relatively immature stage of development that “Mail” is in. Interestingly, in MS Entourage you could invoke a script from the keyboard without a utility, and it had no problem remembering where it was on list of messages. (It’s also relatively easy to find information about “Entourage” on the web.)

Thanks to Jonathan Nathan for his free (as in beer and as in speech) code. Any ideas to tweak it would be appreciated.