December 31, 2012  ·  Lessig

When my third kid was born, went into hibernation. The new stuff at home plus the burden of battling spamalots online made it impossible to continue.

But after kind prodding and lots of very kind help, wakes from its slumber. I am endlessly grateful to Joseph Mornin, who has architected the revival, successfully porting the old into a more manageable platform.

For now, this place will gather stuff published elsewhere first. I will continue to feed my Tumblr blog, because I am still intrigued to understand that community. Posts on HuffingtonPost get automatically ported over. We need to tinker a bit to get the Atlantic stuff carried over.

But meanwhile, welcome back. And if you’re so excited you just can’t stand it, then feel free to give generously to the two entities I care most about: Rootstrikers and Creative Commons.


September 5, 2007  ·  Lessig

The 10th Circuit decided our appeal in Golan v. Gonzales today. In a unanimous vote, the Court held that the “traditional contours of copyright protection” described in Eldred as the trigger for First Amendment review extend beyond the two “traditional First Amendment safeguards” mentioned by the Court in that case. It thus remanded the case to the District Court to evaluate section 514 of the Uruguay Round Agreements Act (“URAA”) under the First Amendment, which removed material from the public domain.

This is a very big victory. The government had argued in this case, and in related cases, that the only First Amendment review of a copyright act possible was if Congress changed either fair use or erased the idea/expression dichotomy. We, by contrast, have argued consistently that in addition to those two, Eldred requires First Amendment review when Congress changes the “traditional contours of copyright protection.” In Golan, the issue is a statute that removes work from the public domain. In a related case now on cert to the Supreme Court, Kahle v. Gonzales, the issue is Congress’s change from an opt-in system of copyright to an opt-out system of copyright. That too, we have argued, is a change in a “traditional contour of copyright protection.” Under the 10th Circuit’s rule, it should merit 1st Amendment review as well.

I suspect this decision will weigh heavily in the Supreme Court’s determination whether to grant review in the Kahle case. It also nicely demonstrates the wisdom in this part of the Eldred decision (don’t get me started on the Progress Clause part of the decision…) The rule of Eldred, as interpreted by the 10th Circuit (and by us) is that Congress gets a presumption of First Amendment constitutionality when it legislates consistent with its tradition. But when it changes that tradition, its changes must be scrutinized under the First Amendment. This is an interesting constitutional argument — echoing some of Justice Scalia’s jurisprudence, as we argue in the cert petition. And it also makes a great deal of sense: practices unchanged for 200 years are less likely to raise First Amendment problems (but see …); but whether or not immunity is justified for them, it is certainly not justified for practices that deviate from Congress’ tradition.

The opinion by Judge Henry is well worth the read. The argument was one the best I have seen. All three judges knew the case cold. It is a measure of how good courts can be that they took such care to review this case.

Thanks to everyone on our team that made this possible. First the clients — Lawrence Golan, the Richard Kapp Estate, S.A. Publishing, Symphony of the Canyons, Ron Hall and John McDonough (all of whom use and build upon material in the public domain; all of whom were negatively affected by Congress’s removal of material from the public domain). But also and especially to the gaggle of fantastic lawyers who supported us in the case — the Denver firm of Wheeler, Trigg, Kennedy, and Stanford CIS lawyers Chris Sprigman, Ed Lee, Jennifer Granick, David Olson, David Levine, Colette Vogel, Elizabeth Rader and Lauren Gelman (Tony Falzone came on afterwards).

January 5, 2006  ·  Lessig

Two hours ago, New Jersey Acting Governor Richard Codey signed into law significant modifications to the New Jersey Charitable Immunity Act. No longer is a charity immune for negligence in hiring an employee who commits sex abuse on a child. This is fantastic news for New Jersey, and for children in New Jersey. It obviously strengthens the appeal in the case I am involved with: If a charity is not immune from liability for its negligence in hiring an employee, it would be bizarre to imagine them immune from liability for intentional torts. But the big news is the bigger picture: It just got much better for kids in that state.

October 28, 2005  ·  Lessig

It is a common (and very good complaint) that there are too many free and open source software licenses. Multiplicity weakens interoperability. Interoperability of innovation is key.

For sometime, Microsoft has been playing in this community. Its “Shared Source Initiative” has given at least some access to important Microsoft code.

Last week, Microsoft made a major announcement that will benefit the ecology of free and open source software licenses significantly. As described here, Microsoft has abandoned a ton of licenses, focusing its efforts on just three core licenses. Two of these three licenses — the MS-Community License (MS-CL), and the MS-Permissive License (MS-PL) are technically “free” licenses under the FSF’s definition of free. The third MS-Reference License (MS-RL) is a view-only license, not quite free, but valuable nonetheless.

This is fantastic news, reinforcing an ecology of free licenses.

October 2, 2005  ·  Lessig

So I’ve been a critic of the TSA in the past. But as I crossed the 275,000 miles flown this year, I realized I now like the TSA lots. I don’t like that we need a TSA; I don’t like many of the rules they enforce. But I have been struck by the change in the manner and character of TSA agents. They have become, with experience or training I don’t know, professional. I’ve seen them deal with things that would have closed airports in the past — and from my recent experience, they deal with them the way a good ER doctor does: with patience, and calm, and lots of humor. I was terrified when the post 9/11 TSA emerged. I was terrified by their character. I am relieved, indeed, heartened, by who the TSA has become.