October 10, 2008  ·  Lessig

Now that both campaigns have signed on, we’ve focused the call for open debates to try to get some real progress. The new letter is below. Meanwhile, please sign up below to support the call for “open debates.” (The original letter to McCain and Obama is here.)

Join The Open Debate Movement – Sign Up Here

Open Debate Coalition

Dear Senator McCain and Senator Obama,

Thank you for your href="http://lessig.org/blog/2008/10/obama_reaffirms_support_for_op.html">recent
affirming our coalition’s href="http://lessig.org/blog/2008/09/free_debates_round_two.html">open debate principles,
designed to make this year’s presidential debates more “of the people” than
ever before. As we approach the final debate on October 15, we ask you to proactively
implement such principles right away.

The closed nature of the recent debates has been universally criticized. The
editors of Politico href="http://dyn.politico.com/printstory.cfm?uuid=DD42EB55-18FE-70B2-A8F5A91C92F31716http://dyn.politico.com/printstory.cfm?uuid=DD42EB55-18FE-70B2-A8F5A91C92F31716">wrote,
“The presidential debate commission’s rules are a scandal” resulting in “a
format designed to limit improvisation, intellectual engagement, and
truth-telling.” 83% of Obama supporters and 75% of McCain supporters style='mso-field-code:"HYPERLINK 022http://www.huffingtonpost.com/timothy-karr/citizens-panel-concerned_b_132871.html022 \t 022_blank022"'> class=MsoHyperlink>agree that tough follow-up questions were
lacking. Even Saturday Night Live spoofed the href="http://www.nbc.com/Saturday_Night_Live/video/clips/vp-debate-open-palin-biden/727421/">lack
of follow-up questions in the debates, and the href="http://www.nbc.com/Saturday_Night_Live/video/clips/update-thursday-debate-open/742065/">watered-down
“town hall” questions chosen.

Therefore, we ask you to jointly announce the following in advance of the
October 15 debate:

1) style='font:7.0pt "Times New Roman"'>      That
the debate moderator has broad discretion to ask follow-up questions after a
candidate’s answer, so the public can be fully informed about specific

2) style='font:7.0pt "Times New Roman"'>      That
after a “town hall” debate full of questions handpicked by the moderator, none
of which were outside-the-box, you will allow Bob Schieffer to ask some
Internet questions voted on by the public in the fashion href="http://lessig.org/blog/2008/09/free_debates_round_two.html">outlined in
our previous letter – which you agreed to. href="http://www.communitycounts.us/">Existing href="http://moderator.appspot.com/#e%253Dagltb2RlcmF0b3JyDQsSBlNlcmllcxjvAQw">technology
will make this easy.

3) style='font:7.0pt "Times New Roman"'>      That,
as a stipulation of the next debate, the media pool must release all 2008
debate footage into the public domain – as you agreed would be in the
public interest. href="http://www.cnn.com/POLITICS/blogs/politicalticker/2007/05/cnn-presidential-debate-footage.html">CNN,
ABC, and href="http://www.msnbc.msn.com/id/20114724/">NBC agreed to release video
rights during the primary, and href="http://www.broadcastingcable.com/index.asp?layout=article&articleid=CA6599759">CBS
agreed more recently. But Fox href="http://blog.wired.com/27bstroke6/2007/10/mccains-dispute.html">threatened
Senator McCain for using a debate clip during the primary, and href="http://washingtonindependent.com/9668/nbc-kills-obama-youtube-hit">NBC invoked
copyright law against Senator Obama to stifle political speech recently. The
public deserves to know debate video can be reused without fear of breaking the

4) style='font:7.0pt "Times New Roman"'>      That
you agree to work with the Open Debate Coalition after the election to reform
or create an alternative to the Commission on Presidential Debates, so that the
debate process is transparent and accountable to the public. Despite both of
your agreement with the open debate principles, the Commission did nothing to
implement them – or even to engage in dialogue about potential
implementation. Also, the “ href="http://blogs.suntimes.com/sweet/2008/10/mccain_obama_deal_puts_limits.html">31-page
memo of understanding” with debate rules is nowhere on the Commission’s
website, and has not been turned over despite requests.

The signers of this letter don’t agree on every political issue. But we do
agree that in order for Americans to make the best decision for president, we
need open debates that are “of the people” in the ways described above. You
have the power to make that happen, and we ask you to do so.

Thank you for your willingness to take these ideas to heart. If you have any
questions, please contact: [email protected]


Lawrence Lessig; Professor, Stanford Law School, Founder, href="http://cyberlaw.stanford.edu">Center for Internet and Society

Ellen Miller; Executive Director, Sunlight

Craig Newmark; Founder, Craigslist

Jimmy Wales; Founder, Wikipedia

Glenn Reynolds; Professor, University of Tennessee Law, and founder of Instapundit.com blog

Aaron Swartz;   Founder, href="http://www.reddit.com/">Reddit

Patrick Ruffini; Republican consultant, Former Republican National Committee
eCampaign Director, and a blogger at TheNextRight.com

Mindy Finn; Republican strategist, former Mitt Romney Online Director, and blogger at TheNextRight.com

Eli Pariser; Executive Director, MoveOn.org
Political Action

Mike Krempasky; Co-Founder of RedState.com

Adam Green; Director of Strategic Campaigns, MoveOn.org
Political Action

Arianna Huffington; Founder, HuffingtonPost.com

Markos Moulitsas; Founder, DailyKos.com

Roger L. Simon, CEO, Pajamas Media

Eric Burns; President, Media Matters
for America

David Kralik; Director of Internet Strategy, Newt Gingrich’s American Solutions

Carl Pope; Executive Director, Sierra Club

John Amato; Founder of Crooksandliars.com

K. Daniel Glover, Executive Producer, href="http://www.eyeblast.tv/public/default.aspx">Media Research Center’s
Eyeblast.tv, and of AirCongress

Jon Henke; New media consultant (including
for Fred Thompson, George Allen, Senate Republican Caucus) and a blogger at href="http://www.thenextright.com/">TheNextRight.com

Matt Stoller; Founder/Editor, OpenLeft.com

James Rucker; Executive Director, ColorOfChange.org

Andrew Rasiej; Personal
Democracy Forum
and TechPresident.com

Micah Sifry; Personal Democracy
and TechPresident.com

William Mitchell; Professor, MIT

Josh Silver; Executive Director, Free Press

Carl Malamud; Founder, Public.Resource.Org

Clay Johnson; Director, Sunlight Labs

Robert Greenwald; President, BraveNewFilms

Kim Gandy; President, National Organization for

Roger Hickey; Co-Director, Campaign for
America’s Future

Billy Hallowell, Director of Content, VoterWatch

David Colarusso; Founder, communityCOUNTS.us

October 29, 2007  ·  Lessig

When in April we launched the campaign to get the candidates and political parties to require that any network televising a presidential debate do so freely, a friend wrote, “Oh come on. Do you really think a network is going to threaten a presidential candidate over a copyright claim?” I did, though I confess I thought it was more likely a network would be the cat’s paw for another candidate. The Fox network has now proven me wrong.

As reported over the weekend, Fox has told John McCain to “cease and desist use of a clip from the last debate that has the Fox logo on it.” Here’s the clip:

McCain, to his credit, has become a freedom fighter. His campaign has refused to comply with the Fox demand But as I’m sure Fox’s lawyers are telling Fox management, the romance surrounding “fair use” notwithstanding, Fox has a pretty good argument. There’s no clear authority supporting the idea that taking just a bit of a television clip is “fair use”; the use here is certainly not commenting upon Fox. Senator McCain’s “right” (in scare quotes because, as the extremists will lecture, fair use is a defense, not a right) to use the clip as he has is arguable at best. Under the law as it has been articulated by the highest courts, there’s no guarantee the Senator’s campaign would prevail.

Which is precisely why the demand we made in April was not that the RNC and DNC fund a bunch of fair use lawyers to help us litigate the “rights” of candidates and citizens to use and transform presidential debates. It was that candidates and the parties demand that any network granted the privilege of broadcasting a presidential debate do so freely — meaning free not in the sense of free beer (they do that already), but free in the sense of free speech: free so that others can take and build upon the speech uttered in these events, freely.

Some networks whined loudly at the time. “It cost us millions,” I was told by one network executive “to run a presidential debate. We need this control to make back our costs.” Maybe, though I doubt Fox is launching its legal campaign against McCain to increase its revenues.

But the more fundamental point is this: As the networks who have promised to (effectively) deliver free presidential debates have shown (CNN, NBC, ABC), even when free, it is still worth it enough to at least some. And in a world with YouTubes and p2p technologies, some networks are plainly enough. If Fox demands control, presidential debates don’t need Fox.

It is time that the presidential candidates from both parties stand with Senator McCain and defend his right to use this clip to advance his presidential campaign. Not because it is “fair use” (whether or not it is), but because presidential debates are precisely the sort of things that ought to be free of the insanely complex regulation of speech we call copyright law.

Indeed, as the target of the attack, and as one who has been totally AWOL on this issue from the start, it would be most appropriate if this demand were to begin with Senator Clinton. Let her defend her colleague’s right to criticize her, by demanding that her party at least condition any presidential debate upon the freedom of candidates and citizens to speak.