Monthly Archives: May 2007

On the Helprin reply: Wow

So I posted the entry calling on people to write a reply to the Helprin piece, and then got on a plane in Boston. When I landed in Frankfurt, I got an email: “Wow! Pretty amazing wiki article.” And indeed it was (and is) — filled with useful facts and ideas, structured and accessible. A real improvement on the Lessig-averages no doubt.
I would have focused the attack in much the same way, though with some differences in emphases. In my view, the right answer comes not so much from careful attention to the metaphysics of property, but from a practical consideration of the burdens of different copyright systems. Where we know that after a very short time, the vast majority of work has no continuing commercial value at all, and that after a relatively short period of time, we’ve provided authors with all the incentives to create they could possibly need, what justification is there for the continued burden of copyright regulation? That question leads some to say “none,” and others to say (ala Posner), “well, at least require those wanting an additional term to take affirmative steps to claim it.” But all who adopt this practical perspective conclude the term should be well short of infinity.
The other thing that struck me about the essay was a point that often gets lost in the rhetoric around “originality” and “remix.” This debate is often couched in terms of “respect” for the author. The problem with the remixer, I’ve been told again and again, is that he doesn’t respect the author.
But compare Helprin’s piece with Jonathan Lethem’s, “The Ecstasy of Influence.” Lethem’s is constructed through the words of others. Helprin’s barely cites anyone. Yet Helprin’s topic is perhaps the most familiar in the history of copyright law. There must be a thousand interesting places where people have considered the same issue, and provided interesting, and compelling responses. (One favorite is Nimmer’s: “If I may own Blackacre in perpetuity, why not also Black Beauty? The answer lies in the first amendment. There is no countervailing speech interest which must be balanced against perpetual ownership of tangible real and personal property. There is such a speech interest, with respect to literary property, or copyright.” Melville B. Nimmer, Does Copyright Abridge the First Amendment Guaranties of Free Speech and the Press?, 17 UCLA L. Rev. 1180, 1193 (1970).)
Yet Helprin doesn’t bother with what others have written. He wakes up one morning puzzled by a feature of law that has been with us for more than two centuries, and rather than research the question a bit, or think about it in light of what others have said, he just fires off an op-ed to the New York Times.
Now between Lethem’s piece (pure remix) and Helprin’s (pure Helprin), which is more respectful of authorship? Continue reading

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Keen's "The Cult of the Amateur": BRILLIANT!

Tomorrow is the official on-sale date for Andrew Keen’s “The Cult of the Amateur,” but the book is already getting lots of attention. Keen, a writer, and failed Internet entrepreneur, spends 200 pages attacking the rise of the “amateur” and the harm — economic, social, cultural and political — these amateurs will cause. Without “standards,” without “taste,” without “institutions” to “filter” good from bad, true from false, the Internet, Keen argues, is destined to destroy us.
There’s much in the book that even we amateur-o-philes should think about. How can we build trust into the structures of knowledge the Internet is enabling (Wikipedia, blogs, etc.)? How can make sure the contribution adds to understanding rather than confuses it? These are hard questions. And as is true of Wikipedia at each moment of every day — there is more work to be done.
But what is puzzling about this book is that it purports to be a book attacking the sloppiness, error and ignorance of the Internet, yet it itself is shot through with sloppiness, error and ignorance. It tells us that without institutions, and standards, to signal what we can trust (like the institution (Doubleday) that decided to print his book), we won’t know what’s true and what’s false. But the book itself is riddled with falsity — from simple errors of fact, to gross misreadings of arguments, to the most basic errors of economics.
So how could it be that a book criticizing the Internet — because the product of a standardless process where nothing is “vetted for accuracy” (as he says of Wikipedia) — could itself be so mistaken, when it, presumably, has been “vetted for accuracy” and was only selected for publication because it passed the high standards of truth imposed by its publisher — Doubleday?
And then it hit me: Keen is our generation’s greatest self-parodist. His book is not a criticism of the Internet. Like the article in Nature comparing Wikipedia and Britannica, the real argument of Keen’s book is that traditional media and publishing is just as bad as the worst of the Internet. Here’s a book — Keen’s — that has passed through all the rigor of modern American publishing, yet which is perhaps as reliable as your average blog post: No doubt interesting, sometimes well written, lots of times ridiculously over the top — but also riddled with errors. Keen’s obvious point is to show those with a blind faith in the traditional system that it can be just as bad as the worst of the Internet. Indeed, one might say even worse, since the Internet doesn’t primp itself with the pretense that its words are promised to be true.
So lighten up on poor Mr. Keen, folks. He is an ally. His work will help us all understand the limits in accuracy, taste, judgment, and understanding shot through all of our systems of knowledge. The lesson he teaches is one we should all learn — to read and think critically, whether reading the product of the “monkeys” (as Keen likens contributors to the Internet to be) or books published by presses such as Doubleday.
I’ve outlined some of these errors in the Extended Entry below. I’ve also placed that enumeration on a wiki, and I invite everyone to help construct the The Keen Reader — listing and demonstrating the errors in his book, so others can see quite clearly just how brilliant a self-parody this book is. Continue reading

Posted in Read This | 63 Comments

Helprin on perpetual copyright: write the reply?

So I’ve gotten (literally) scores of emails about this piece by Mark Helprin promoting perpetual copyright terms. “Write a reply!” is the demand. But why don’t you write the reply instead. Here’s a page on Please write an argument that puts this argument in its proper place. Continue reading

Posted in free culture | 33 Comments

Free Culture, Harvard

Next week, Harvard will hold this year’s Free Culture National Conference. Go, join, multiply! Continue reading

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Free Debates: Congressman Livingston (Rep) (Ret) joins the call

This letter was sent to the RNC today:

May 16, 2007
Honorable Mel Martinez
Republican National Committee
310 First Street, SE
Washington, DC 20003
Dear Chairman Martinez:
I have watched with interest the growing effort to urge the Republican and Democratic National Committees to open the debate process by making the footage from the Presidential debates available to the public – by permitting anyone to reuse the footage in whole or in part with attribution or by placing the footage in the public domain.
The process of selecting our representative government is perhaps the most important function we, as Americans, carry out in our democracy. It is imperative that the process to do so is as public, and as transparent as possible.
Following on the heels of this week’s Republican Debate in South Carolina, I am writing to urge you to give new consideration to the bi-partisan request you have received requesting access to the debates. I believe this effort is important to our democracy, and I am reaching across the partisan divide to join Senators Obama and Dodd, and former Senator Edwards in asking the parties to assist in opening the process to the people.
I was encouraged that CNN recently announced it would make the footage from its debates available immediately following the conclusion of the debate.
Due to the historical nature of presidential debates and the significance of these forums to the American public, CNN believes strongly that the debates should be accessible to the public. The candidates need to be held accountable for what they say throughout the election process.
The presidential debates are an integral part of our system of government, in which the American people have the opportunity to make informed choices about who will serve them. Therefore, CNN debate coverage will be made available without restrictions at the conclusion of each live debate. We believe this is good for the country and good for the electoral process.
I could not agree with this more. I hope that other networks will follow suit and give these debates life beyond the moment. It is unfortunate that activists currently fear running afoul of copyright laws and may hesitate before using footage from these debates to advocate on behalf of their candidate.
These debates are a part of our political discourse. While the networks do the nation a great service by hosting and broadcasting them, the issues and ideas are bigger than the networks that carry them, and deserve a life beyond their air date.
Recently, I began working with the Capitol Hill Broadcasting Network ( in an effort to bring attention and transparency to our government. CHBN provides a platform, similar to YouTube, for elected officials, candidates, public policy advocates, and others to engage in discussion and debate of the important issues facing our nation. CHBN is dedicated to making our government accessible to the people, and as CNN suggested, holding our government accountable to the people.
I ask that you do the same. I urge you to put the weight of the Republican National Committee behind the effort to free the debates. Urge the networks carrying Republican debates, and the candidates seeking the highest office in the land, to make the footage available to the people.
Thanks for your consideration of this matter and your stewardship of our party.
Robert L. Livingston
Member of Congress (Retired)

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Free Debates: MSNBC

MSNBC wrote to me to say that the policy I quoted them as having respecting the Presidential Debates is not, in fact, their policy. We’re having a constructive conversation about what the policy should be. Meanwhile, here’s their statement to me.

As the producers of two Presidential Candidates’ debates so far this year, NBC NEWS, MSNBC and believe strongly in our public interest obligations and the importance of a robust political dialogue on the internet.
The MSNBC / GOP Debate and the MSNBC Democratic Candidates debate were both aired commercial free on MSNBC cable. In addition, the debates were streamed live in their entirety at our free website, where both debates continue to be available through election day 2008 for streaming, in their entirety as well as in segments. The GOP debate also streamed live at Other news organizations as well as news and information websites are free to use substantial portions of both debates on their television, radio, and internet platforms. (Specific usage information has been released separately by NBC media relations.)
In the weeks ahead and until Election Day 2008, we will continue to make our coverage widely available on many platforms, and we welcome the ongoing conversation on ways to bring these important events to an even broader audience of Americans.

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iCommons Summit 07 — help us more!


Thanks to the many (and I know, because I get to write the thank you notes) who responded to my request to help us increase the scholarship funding for the iCommons Summit. We are in the last days (Monday we need to decide who we can fund and who not) and we need $16,000 more from the public campaign. Please do what you can. Or maybe, a bit more than you can. We’re trying to bring as many as possible. Not many in this movement can afford a trip to Croatia without support. We want to help as many as possible.
A couple clicks and you could help us bring a couple more. Continue reading

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Another fantastic victory by the Center for Internet and Society

Brian Transeau, aka BT, is a well known electronic, or “trance musician,” as Wikipedia puts it. More than a year ago, his lawyer contacted me about a lawsuit that BT was defendant in. BT was alleged to have “copied” a 9 second drum track in a recording that was used in an advertisement. BT had not copied anything. Moreover, the drum beat was totally generic, and not, BT argued, subject to copyright protection at all.
We don’t usually get involved in cases involving famous artists. But after more than a year in litigation, this (totally bogus) case had become too much. We therefore took the case to defend this creator’s right to create, rather than see him forced to cave to these groundless claims by a litigation happy plaintiff (he had done this to others before). Musicians, especially using electronic technology, need to be free to create without basic sound patterns being used as tools of litigation extortion.
Yesterday, the district court finally dismissed the case. After an extensive period of discovery, and expert testimony, the Court found that plaintiff had no credible evidence that BT copied the 9 second drum beat.
BT: “[The plaintiff] attacked my integrity as an artist. It’s very satisfying to be vindicated by the Court, and reassuring to know there are organizations and lawyers out there who are willing to donate their time to help artists protect themselves and their work.”
You can read the opinion here.
Thanks to the lawyers at CIS who made this happen, and also to the fantastic lawyers at Kirkland and Ellis who were also volunteers in this case. Continue reading

Posted in Stanford CIS | 7 Comments

Way 2 Cool 4 Me — Free Culture South Africa

When we launched CC Brazil, Glenn Brown and I christened a term that I’ve had to invoke way too much — W2C4M — Way too cool for me. The launch of Free Culture South Africa was W2C4M^2.

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Free Debates: A defining moment

So last week, good news. This week, importantly defining news. The USA Today OnPolitics blog has announced that Fox has decided not to make its debates with the Republicans free.
This is now a defining moment. The RNC has not yet responded to either the call to free the debates, nor even the request to talk. And while three Dems have joined the call, the DNC and Hilary Clinton are also, so far, AWOL in this debate.
It is time to for these leaders to say something, one way or the other. Some of the best bloggers I’ve read are Republican. Does the RNC support them? And it has taken way too long for Senator Clinton to focus on this issue. Why?
Inquiring minds want to know. And more should ask that these questions get answered. Continue reading

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