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Author Archives: Lessig
On the continuing question of © and the First Amendment
Some important news in the continuing struggle to reckon the First Amendment and copyright. For those not following this in depth, here’s the story so far:
In Eldred v. Ashcroft, the Court was asked to subject a copyright statute to First Amendment analysis. The Court declined that request. Instead, the Court held that so long as copyright act does not change the “traditional contours of copyright protection,” further First Amendment review is not required.
That standard left open the question of what the “traditional contours of copyright protection” were. In three follow on cases, lower courts have now addressed the question. In all three of these lower court cases, the government has argued that by “traditional contours of copyright protection,” the Eldred court meant simply the “idea/expression” dichotomy and “fair use.” Thus, the only possible First Amendment challenge to a copyright statute, according to the government, is if the statute changes one of these two “traditional First Amendment safeguards,” as the Court in Eldred referred to them.
Plaintiffs in these three lower court cases have taken a broader view of the meaning of “traditional contours of copyright protection.” Rather than limited to the two “First Amendment safeguards,” plaintiffs have argued that “traditional contours” means, well, traditional contours. That if plaintiffs allege a change in the “traditional contours of copyright protection” implicating First Amendment interests, that change should be subject to First Amendment review.
In two of these lower court opinions, one in the Ninth Circuit (Kahle v. Mukasey) and one in a district court in the DC Circuit (Luck’s Music v. Ashcroft), the courts have agreed with the government. In one of these lower court opinions, (Golan v. Mukasey), the 10th Circuit agreed with the plaintiffs.
This split was the focus of a cert petition (Petition, Reply, Supplemental Brief) to the Supreme Court in Kahle. The government responded (response) that there was no need for Supreme Court to review Kahle, because the “mistaken” decision by the 10th Circuit would be reversed when the Court of Appeals granted the government’s motion to rehear the case en banc.
On Friday, the 10th Circuit denied the government’s motion. But on Friday, the Supreme Court accepted the government’s recommendation not to recognize the split, by denying cert. Thus, though the reason the government offered for not granting cert turned out to be false, cert has not been granted.
There’s no chance the government will allow the 10th Circuit’s decision to stand unreviewed. But while the 10th Circuit opinion is fantastically well done, it is unfortunate, in my view, that the Court did not take the opportunity to resolve the split in the context of Kahle. The issues in that case are clearer; they provide a better context within which to review the meaning of the Eldred rule — indeed, they make the wisdom of the Eldred rule seem obvious.
Continue reading
Posted in eldred.cc
2 Comments
Iowa Elections Market
For the first time since March, Obama is ahead of Clinton in the Iowa futures market. And for the first time ever, he’s above 50%. 53.2% to be precise. Continue reading
Posted in presidential politics
5 Comments
On the meaning of "change"
Senator Clinton says: “We’re all advocating for change. We all want to change the status quo, which is George W. Bush and the Republican domination of Washington.”
Really? Is that the “change” being called for by Edwards and Obama? Because I heard their call for change to be bigger than this. To be more fundamental. We’ve not made progress if change gets us to a world where lobbyists influence Democrats rather than Republicans. It’s not “change” if we get back to a world where the Lincoln Bedroom goes to a leading Democratic fundraiser rather than a Republican. If the only “change” at stake here is a change in the party in control, then there’s no much to get excited about.
Update: Some have misread this to be a kind a Nader-esque post — that three’s no difference between the Dems and Republicans, etc. I don’t mean that at all. I think there is a hugely significant difference between the DEMs and GOP, and between Obama/Edwards and Clinton, on the single issue that I care most about — whether we will see any progress in reforming the corruption that is Congress.
Continue reading
Posted in presidential politics
11 Comments
Thank you, Iowa
“Let the word go forth from this time and place, to friend and foe alike, that the torch has been passed to a new generation of Americans.”
post-NH update:
This was the first of many, before the final in November. As John Edwards put it, “The status quo lost.”
From the “[old] generation of Americans”: “I’m not dead!” (See The Holy Grail, The Dead Collector)
Thank you, Iowa. Continue reading
Posted in presidential politics
19 Comments
My congressman is retiring
As Reuters reports, Congressman Tom Lantos has been diagnosed with cancer and is retiring from Congress.
Lantos has had an extraordinary career in Congress. A Holocaust survivor and a Hungarian, he has been on the right side of most things in his million plus year tenure in Congress (ok, 26 years). In 2004, I supported his Democratic opponent on the principle that Democrats needed to express their opposition to the war at a minimum by opposing those Democrats who supported the war (and the Patriot Act).
But we are all sorry to hear of Congressman Lantos’ illness, and thank him for his public service.
Continue reading
Posted in politics
3 Comments
The great good that Iowa can do
It now looks like there’s a very good chance that Iowa will do the American democracy more good tomorrow than any election has done in the last generation.
If the polls are to be believed (or if caucusers turn out according to the polls), then a majority of the Democracts will be voting for a candidate that places fixing the corruption that is Washington at the very top of his agenda. Both Edwards and Obama have made this their core message (Populist hero Edwards more than new generation Obama), and if the majority of Democrats in Iowa ratifying that message gets understood, we may see this election go a long way towards fixing the problem that I think is the single most important problem facing government today.
As I’ve said before, I don’t think this is a Dem/GOP issue. But it is the case that the only credible campaigns attacking it are now from the Democratic side of the isle. The grotesqueness of the last 7 years perhaps leads the GOP to ignore the issue. The allegiance of the establishment Democratic candidate (HR Clinton) leaves an open field for the “less experienced” Obama and Edwards.
But in that charge (“less experience”) lies all the promise of these two reform candidates. If you were asking how best to reform a corrupt Police Department, would anyone think that someone experienced inside the department was likely to be an effective reformer? I’m not saying it’s not possible: Someone living inside that corruption could finally boil over with revulsion at the system that they are living within. Precisely that revulsion is what many of us were looking for Clinton to demonstrate. But we got none of that. Instead, we got a full throated defense of lobbyists. Thus, even if it is possible that an “experienced” politician could reform the system, the experience of HR “Lincoln Bedroom” Clinton is not likely to manifest that zeal for reform. She and her husband prospered from that system. Why would they ever work to dismantle it? She asks in her final 2-minute plea to Iowa: “Who is ready to be president and ready to start solving the big challenges we face on day one?” That’s not the question. The right question is this: “Who sees fixing the corruption that is government as the most important challenge we face on day one, and who is likely to have the will to do it?”
Edwards and Obama are different from Clinton in this respect at least. Both are single term Senators — in it enough to be revolted by the system, both aching to force change upon it. I concede it may be hard for some to choose between them. I think it is a moment of celebration that the Dems have two with this ethic at their core. And while I would not criticize anyone who caucused for Senator Edwards, as I’ve already indicated, my pull for Obama comes not just from knowing him a bit personally, but also from the aching desire that we let, to borrow from JFK, the torch pass to a new generation. Imagine what America looks like from the outside when this mixed race American (a redundancy, to be sure), who opposed this horrible blunder of a war from the start, is sworn in as President. And imagine what America looks from the inside, when all those under 50 see a man who doesn’t actually remember Woodstock defining for a generation those things worth remembering.
It is a hopeful moment. Please, Iowa, make it real. Continue reading
Posted in presidential politics
7 Comments
final hours: thank you again for the support
As we enter the final hours of the Support Creative Commons campaign (and here in California, we still have 9 hours left, so feel free to join in), we’ve exceeded our goal by almost 20%. I’m grateful to all for the support, especially the support coming just now. This has been a fantastic year. Continue reading
Posted in creative commons
8 Comments
Commons Misunderstandings: ASCAP on Creative Commons
ASCAP’s essay, “Common Understanding: 10 Things Every Music Creator Should Know About Creative Commons Licensing” nicely highlights some important considerations that any musician should review before using a CC license. Unfortunately, however, it also continues some common misunderstandings about Creative Commons. I’ve reprinted, and responded, to these in the extended entry below. But before the details, there is one important fact of agreement to keep in view, and one important disagreement:
We certainly agree with ASCAP that “music creators should fully understand the terms to which they are agreeing and the implications down the line.” That applies to CC licenses as much as to a recording contract. And we’re as keen as anyone to make sure that understanding is there.
But it is not the case that CC asserts that “artists should give up all or some of their rights” — if by that ASCAP means either that we believe giving up “all or some of their rights” always benefits an author or artists, or that, benefit notwithstanding, an artist should sacrifice his or her rights for the common good. Neither is correct. We know that sometimes, freer access helps. We provide tools to make it easier for artists to enable freer access. We also believe that when making creative work freely available doesn’t hurt, and sometimes helps, the culture is benefited by choosing freedom rather than licensing lawyers. And finally, we believe that some forms of creative work — e.g., the work of scientists, or governments — should be freely available. But that normative claim is far from the work we do with the authors or artists that ASCAP deals with. Our business with respect to them is not to exhort them to charity. Artists and authors have it bad enough without a bunch of nerdy lawyer-types trying to pile on more guilt.
Now to the end of correcting some misunderstandings, the corrections of what ASCAP has said: Continue reading
Posted in creative commons
39 Comments
Sunlight: Help on a distributed research project
The Sunlight Foundation has launched a distributed research project. The aim is to learn what happened to former members of Congress and staffers after the 1 year “cooling off” period has come to the end (and thus, they can go work for lobbyists). Using a very cool interface, you can help track down former staffers, and add the results to the research database. Begin here. Continue reading
Posted in Corruption
13 Comments