Things I didn't have time to do Monday: I: "Net Neutrality" @ five

Posted on October 3, 2007 by Lessig

Five years ago Monday, Congress (I believe) for the first time heard the word “Network Neutrality.” As Tim Wu has described, in the summer of 2002, he and I talked through how the campaign to support “end-to-end” neutrality might be extended. (See, e.g., “The Policy Implications of End-to-End.”) He then ran with the reframing of “Network Neutrality,” and thanks to his great work, and others, the idea has stuck.

Lots of progress has been made on this issue in the last five years. Fantastic organizations (like Free Press‘s SaveTheInternet.org) have mobilized real attention to this issue. No one imagined five years ago that meme would spread so fast and so well.

But I am especially happy now to have the support of AT&T and Verizon on this issue, as they’re obviously now pushing to get some real Net Neutrality legislation passed in Congress soon.

“What?” you ask? “AT&T and Verizon?!!! Are you nuts?”

Yea, I know the conventional wisdom — AT&T and Verizon, like all carriers, want no Net Neutrality regulation. But how else to explain the absurd gaffes of the last couple months? AT&T censoring Eddie Vedder. AT&T censoring NARAL. Verizon and AT&T have Terms of Service that permit them to censor criticism of them.

Sure, these companies MAY BE extraordinarily inept. They MAY BE just tripping up all over the place. They may be simply signaling their own non-neutral position in a competitive market for networks, allowing consumers to select other networks that are more neutral. (Scratch that: I forgot. No more competition. See this fantastic graphic over at Wikipedia to get a flavor of the retrenchment that is telecom policy in America today.)

So, sure. Maybe. Maybe this is just a mistake. But I don’t buy it. These guys spend millions on lobbying every year. (Actually, probably every month.) How could they possible be so inept? Isn’t a better interpretation of the events of the last few months that they just really want what would be good for the Net generally — a very clear set of neutrality regulations?

(And yes, of course I am.)

Posted in NetNeutrality | 3 Comments

Things I didn't have time to do Monday: II: CC launches annual campaign

Posted on October 3, 2007 by Lessig

Monday was an insane day, and I had no time to remark to important facts. First, Creative Commons (new page!) launched its third fall fundraising campaign. The theme is 5. We’re five on December 15 (big party, stay tuned). And we’ve set $500k as our goal — way beyond what we’ve targeted before. So please help, any way you can. SupportCC.

Posted in creative commons | Leave a comment

A new GC (and VP)

Posted on October 2, 2007 by Lessig

Creative Commons announced yesterday that we have hired a new General Counsel (and Vice President).

I can’t adequately describe the happiness (and relief) that announcement gave me.

The General Counsel is crucial to CC’s success. Virginia Rutledge is our third. We’ve had fantastic general counsels before her. And when each left, while I wished them luck in their new life (at Google), I felt as if the wind had been knocked out of me.

Our first had been the entrepreneur who founded the place. That quality couldn’t be replaced. But I was extremely happy when we found someone who could give us something else that we needed then. Like our first, this GC was brilliant and could write extremely well. But she was also a very experienced lawyer (she had practiced and had practiced in other jurisdictions), and she let that experience translate into a very strong will in guiding and protecting our most important asset — the legal brand.

When she left, I again had doubts we would find a replacement. But again, I am extremely happy to have my doubts proven wrong. Virginia, too, has the tough-lawyer experience that our last GC showed us was so critically important. But beyond that, she also had an extensive life in the community of artists and museums before she turned to the law. Of all the candidates we considered, none could match the breadth and significance of this experience.

From the press release:

“I applaud Creative Commons for its inspired choice of Virginia Rutledge as Vice President and General Counsel,” said copyright expert William Patry, Senior Copyright Counsel, Google Inc. “Virginia’s background in academia, the art world, and the white-shoe corporate law firm environment is unique. Her ability to forge consensus, her love of learning and commitment to the public interest will serve Creative Commons and the rest of us exceedingly well.”

“I commend Creative Commons for this excellent choice to help further the worthy purposes of the organization,” said patron of the arts Martin E. Segal. “Virginia’s commitment to the arts and her scholarly and practical background make her a wonderful addition.”

“Creative Commons couldn’t have made a better choice,” said Joel Wachs, President of The Andy Warhol Foundation for the Visual Arts. “Virginia has deep knowledge of contemporary art practices and institutions, and the practical experience of working within a highly competitive corporate culture. She will do an excellent job of helping to build relationships between communities that have a common interest in promoting vibrant cultural production and exchange.”

She will. And as I understand now, this is precisely what we now need.

Posted in creative commons | Leave a comment

On the Texas suit against Virgin and Creative Commons

Posted on September 22, 2007 by Lessig

Slashdot has an entry about a lawsuit filed this week by parents of a Texas minor whose photograph was used by Virgin Australia in an advertising campaign. The photograph was taken by an adult. He posted it to Flickr under a CC-Attribution license. The parents of the minor are complaining that Virgin violated their daughter’s right to privacy (by using a photograph of her for commercial purposes without her or her parents permission). The photographer is also a plaintiff. He is complaining that Creative Commons failed “to adequately educate and warn him … of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use.” (Count V of the complaint).

The comments on the Slashdot thread are very balanced and largely accurate. (The story itself is a bit misleading, as the photographer also complains that Virgin did not give him attribution, thereby violating the CC license). As comment after comment rightly notes, CC licenses have not (yet) tried to deal with the complexity of any right of privacy. The failure of Virgin to get a release before commercially exploiting the photograph thus triggers the question of whether the minor’s right to privacy has been violated.

I’m not allowed to comment just now about the merits of the lawsuit. So I won’t. But I did want to comment about some obvious, and not so obvious points triggered by the suit.

First, and obviously, CC has worked, and will continue to work, to find ways to make the meaning of our licenses clear. Our aim is to provide licenses that do what the copyright holder wants. If the licenses are not clear, then we can’t achieve our aim.

Second, our desire to make our licenses clear far exceeds any obligation that may be imposed by the law. We’ve tried to make copyright simpler than Congress did (at least for the vast majority of those now regulated by copyright) (See, for example, the efforts we’ve taken to simplify the right of a copyright holder to terminate a transfer of his rights.) So too do we try to make the meaning of our licenses simpler than any standard that might be required by the law.

But third, this case does demonstrate that there is work to be done beyond the scope of what CC has tried to do so far. The CC licenses, for example, don’t purport to deal with rights of privacy. We’ve already begun to think about whether we should because of an iCommons node, or project, our chairman, Joi Ito, wants to launch called the “freesouls” project. Joi’s aim is to produce high quality images of interesting people, licensed under a CC-BY license. He certainly recognizes that means commercial entities (like Virgin) can use his photographs. But without a “model release,” such use is not simple. Making it simpler — for those who want to enable that simple use, both photographer and subject — is the objective of Joi’s project. Simpler either by a general release, or a simple mechanism to secure particular permissions. Again, the CC-BY license solves the permissions problem for all copyrights. But it does not solve the permissions problem for a publicity right, or a right of privacy.

Finally, this case does again highlight the free culture function of the Noncommercial term in the CC license. Many from the free software community would prefer culture be licensed as freely as free software — enabling both commercial and noncommercial use, subject (at least sometimes) to a copyleft requirement. My view is that if authors so choose, then more power to them.

But this case shows something about why that objective is not as simple as it seems. I doubt that any court would find the photographer in this case had violated any right of privacy merely by posting a photograph like this on Flickr. Nor would any court, in my view, find a noncommercial use of a photograph like this violative of any right of privacy. And finally, as the world is just now, while many might resist the idea of Virgin using a photograph of theirs for free (and thus not select a license that explicitly authorizes “commercial use”), most in the net community would be perfectly fine with noncommercial use of a photograph by others within the net community.

The Noncommercial license tries to match these expectations. It tries to authorize sharing and reuse — not within a commercial economy, but within a sharing economy. It tries to do so in a way that wouldn’t trigger at least most non-copyright rights (though again, most is not all — a CC BY-NC licensed photograph by a voyeur still violates rights of privacy, for example). And it tries to do so in a way that protects the copyright owner against presumptions about the waiver of his rights suggested by posting a work freely.

Stay tuned for more as it develops.

Posted in cc | 28 Comments

Disclosure Statement 2.0: The Independence Principle

Posted on September 21, 2007 by Lessig

On Tuesday I give my first cut at this question of corruption in a public lecture at Stanford.

One part of my research leading up to this talk has led me to redescribe what before I was calling the “Noncorruption Principle.” I now think a better way to describe this idea is with the notion of “independence.” The aspiration I would commend is to maintain independence.

I hope to have a version of the talk available here afterwards.

Posted in Corruption | 7 Comments

Why I like the ABA

Posted on September 21, 2007 by Lessig

The single most important lesson I learned when studying the pathologies of communist nations (my life, 1980-1994) was just how critical NGOs (non-governmental organizations) were: Strong, independent sources of moral authority that could check and criticize powerful governments. I know few see lawyers in that role anymore. I’m not one of that few. In my view, lawyers have a critical role in protecting the rule of law — not just technically, but ethically, and culturally. It is our job to remind a nation of the ideals that underly a rule of law state.

It was with great pride then that I watched this fantastic talk by the new ABA President, William Neukom. I’ve had my disagreements with Mr. Neukom in the past. But there’s nothing in this talk that I disagree with, and there’s everything to praise. Watch especially the Q&A. And especially especially the answer about access to the legal system by the poor.

Posted in heroes | 2 Comments

A big victory: Golan v. Gonzales

Posted on September 5, 2007 by 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).

Posted in 1st A, Copyright, good code, Good news, heroes, Stanford CIS | 24 Comments

On teaching artists' rights

Posted on August 29, 2007 by Lessig

Film schools are in the business of creating filmmakers — artists with film. Their job is to teach both the skill and the ethic of an artist. The skill in making film; the ethic of creating art.

So what lesson do film schools teach their students about copyright? Unfortunately, in some at least, the most striking lesson is on how best to become an artistic-sharecropper.

That at least seems to be the lesson being taught at the University of Hawai’i’s Academy of Creative Media. All film students must sign a copyright agreement that either renders their work “work for hire” or assigns completely all copyright in their creative work to the ACM. (After two years, the student gets a nonexclusive license to the work, but the copyright remains with ACM). ACM becomes the black hole for these rights. What they do with them is not clear.

But what is clear is the lesson ACM is teaching: That you, the creator, deserve no creative- or copy-right for your creativity. That right should be owned by the man. And while (at least so long as you’re good) the man might grant you a nonexclusive license to your creativity, don’t even think about the idea that what you create is yours to control. Copyright at ACM at least is not a right grant to “authors,” it is a right taken from the authors by the University.

Is there anything illegal in this? No. Is there anything immoral in this? Probably not. But I should think that at least some film students will decide where they want to learn how to be film makers by thinking a bit about the values of the school they attend. IMHO, these are precisely the opposite of the values we ought to be teaching creators.

Posted in bad code | 17 Comments

On Clinton and lobbyists

Posted on August 14, 2007 by Lessig

In an interview after YearlyKos, DailyKos founder Markos Moulitsas Zuniga was keen to avoid making himself less relevant (“I can’t imagine any way to make myself less relevant today than to come out” and announce his choice for the presidency he told the Times). But there are times when we all have a duty to make ourselves a bit less relevant (I know, assuming a fact not in evidence). This is one for me, prompted by Senator Clinton’s vigorous defense of lobbyists, now supported by the Wall Street Journal.

It should be no surprise that I’ve been a Clinton skeptic for sometime now. As I said at a keynote at PDF , those of us in the free culture movement have lots to be skeptical about. Some of the worst changes in copyright law came under the watch of her husband (Sonny Bono Act, DMCA, NET Act). She’s made no statements that I’m aware of to suggest she has any different view from her husband’s. She was also the only major Democratic candidate not to endorse the idea of free presidential debates. Of all the Dems, I would have bet she was closest to the copyright extremists. So far, she’s done nothing to suggest to the contrary.

But that skepticism could have been erased. As important as I believe those issues are, they are obvious not the most important. What is, in my view, most important is a candidate with a clear understanding of the corruption that is Washington. (Again, not corruption in the bribe sense. But corruption in the economy of influence sense I’ve described before.)

After her comments on the lobbyists, it is clear enough that Senator Clinton has no such clear view. Indeed, quite to the contrary: were she elected, we’d get more of the “let me do enough to suggest I think this matters but not so much as to make a change” we’ve seen for 30 years. And if this election is to matter, this is precisely the sort of view that we need to defeat.

“The idea,” Senator Clinton said, “that a contribution is somehow going to influence you …” Right. That’s precisely the idea. Not always. Not fundamentally. But obviously (isn’t it? Or is the relationship between contributions and votes so brilliantly mapped on MAPLight just an amazing coincidence?) on the margins, when interests are strong and opposition oblivious, “contributions … influence” judgments that otherwise would have been different. That, at least sometimes, is the problem.

The problem is not, as Clinton seemed to suggest, that anyone believes that lobbyists are evil. Of course they are not evil. Lobbyists are often among the best educated, hardest working, most sophisticated people in Washington. They know their stuff. They are fantastic at conveying the message. They are typically decent, polite and honorable people. They are not in any sense corrupt, any more than lawyers, or press secretaries, or union stewards are corrupt. They have a job; it is to persuade. The people who succeed in that job succeed because they are good at what they do.

But just because a system is populated with good people does mean the system itself is not corrupt. And the problem with this system is the way it obviously queers good judgment when so much effort by politicians must be devoted to raising money in order to keep your job.

Put differently, if there were a way to fund campaigns that wouldn’t create the stain of corruption, we would still need (and want) lobbyists. Their job would be simply to make policymakers aware of the interests they represent. But just because your job is to educate politicians, it doesn’t mean you have to be able to give politicians money.

This is the (extraordinarily obvious) point the Wall Street Journal missed when it chimed in yesterday in support of the Senator. As the Journal wrote:

Her answer was met with jeers, but what Mrs. Clinton was daring to tell her left-wing audience is that lobbyists are an essential means by which average Americans transmit their political concerns to Washington, and in turn hold their elected Representatives accountable. Not everyone in America can afford to trek to D.C., or has the clout to demand an audience with a Senator. Lobbyists represent the collective voice of groups with shared ideals, whether they be gun owners, union workers, corporate employees or the pro-choice movement.

Just the sort of reasoning that makes that page so famous: Look, lawyers represent their clients before a judge. Does it follow from that that judges must be free to take money from lawyers? Even just to redecorate their office?

I don’t doubt that at one level, Senator Clinton believes — like every politician who takes money in a campaign, or every law professor who takes money to testify for some policy or another — that her judgments are not being influenced by that money. But I also can’t believe that she doesn’t also understand that at some level, this simply can’t be true. A good politician develops a 6th sense about how her actions will play. Some of these reactions we want her to be sensitive to — that’s why this is a democracy. But it impossible to believe that politicians spending 40% to 70% of their time raising funds to get elected don’t begin to factor into their decisions a sense about how their decisions will burden their opportunities to raise money. Not that it always trumps. But like water in a basement, it obviously eventually corrodes.

Posted in Uncategorized | 21 Comments

Jamming the Pearl

Posted on August 10, 2007 by Lessig

In October, 2002, I testified before the Senate Commerce Committee about “network neutrality.” (Here’s the article referenced in the testimony.) I believe it was the first time Congress heard the term “network neutrality,” but the message was just a continuation of the story many of us had been pushing since circa 1998 about preserving the “end-to-end” principle on the Internet.

After my testimony, an economist/lobbyist approached me and asked: “Do you really believe there is any threat that broadband network owners would discriminate in either the content they carry, or the applications they allow? After all, first, none will have enough market power to be able to do this without consequence, and second, even if they did have enough market power, what possible incentive would they have?”

I remember then thinking — this is the life of the theorist. They have a simple economic theory about how people will behave. When mixed with large lobbyist fees, it becomes impossible for them to imagine how anyone could behave inconsistent with the theory.

I don’t know what theory would explain the extraordinary stupidity of AT&T in censoring certain anti-Bush Pearl Jam lyrics.

But the important points to remember are these:

(1) This is precisely the behavior we e2e/NetNeutrality advocates have been warning about for almost a decade. And not just (or even most importantly) in this explicit form. Much more important are the games played more subtly, to push innovation and content in the direction that benefits AT&T.

(2) This is precisely the behavior cable companies have demonstrated from the beginning of cable. They live in a culture in which they own the lines, so they believe they have the absolute right to control the content/application on those lines. Whether or not that culture is harmful for cable deployment, it will be deadly for Internet innovation.

(3) This is precisely the environment that raises the cost of application innovation for the cell phone industry. As many VCs have explained to me, innovating in the cell phone application space is deadly, because every innovation needs the approval of the network owner. Again, maybe Steve Jobs is right, and this kind of control is necessary for cell phones (though I don’t believe it). But bringing the culture of the cell phone network to the Internet is a great way to increase profits to the network owners while reducing innovation on the Net.

This censoring event, whether AT&T’s “mistake” or not, should be a rallying point for this movement. Let it be remembered a million times until we get an administration willing to do something (finally) to protect the promise of the Internet.

Posted in NetNeutrality | 32 Comments