Monthly Archives: October 2007

Free Debates: Fox's fair (use) fight

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.
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Posted in free debates | 14 Comments

We need an accountant!

So Creative Commons desperately needs an new accountant. Our trusty and excellent current accountant is moving on. If you have any ideas, please refer him/her to the job posting. Thanks. Continue reading

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Carl on (Re)Defining the Public Domain

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Posted in free culture, heroes | 6 Comments

Ok, we'll give her a shirt already

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Supercapitalism == super


I bought this book because I heard it described on the radio (NPR, no less) in a way that made it sound like the dumbest book of the decade. It turns out that it was the summary, and not the book, that was dumb. Indeed, this is a fantastic book by an extremely smart and experienced liberal. It is the first book on the Corruption Required Reading list.
A clue that there’s something interesting here is that here a liberal is arguing (among other great arguments) that the corporate income tax ought to be abolished (shareholders should pay that tax instead), and that corporations should not be giving health benefits to workers (the tax benefit is a huge skew to the economy, producing an inefficient and ineffective national health care system, costing close to $140 billion a year). Both sensible proposals signal that Reich is thinking, not simply rehearsing. And thought from a person as experienced as Reich, a Professor at Berkeley and Labor Secretary under Clinton, is critical to achieving the reform we need.
But the book will be on the required reading list for corruption because of the place corruption has in the argument. The basic arc of the argument is to first describe what Reich calls the “Not Quite Golden Age” in America, roughly the first half of the last century, when barriers to competition meant capitalism was relatively rich and big. Oligopoly defined the period; cooperation among big guys was the consequence.
This relatively quiet period for competition had some interesting consequences. (Big) business could afford to do socially helpful things (health care, etc.). Government could lean on them, and it was possible, because of the implicit protection of relatively weak competition, for them to give the government what it wanted.
We’ve now left the NQGA, Reich says, and entered a period of Supercapitalism — a time when competition has grown dramatically, and when half of us (meaning half of each of us, or at least half) more effectively demand lower prices in the product and service market place and higher returns in the investment market place. This hyper competition is forcing extraordinary rationalization in both markets. Wal-Marts and an exploding stock market are the consequence. The half of us that lives in the product/service and investment markets have been rewarded by this competition. Supercapitalism is producing super-efficiency, at least here.
The problem, from Reich’s (and my) perspective, is that the other half of us – the part that thinks not as an actor in a market, but as a citizen – has atrophied. That is, the half of us (again, of each of us – Reich’s point is that each of us has these two parts) that demands that government set sensible and efficient limits on private action has atrophied. Deep skepticism about government has made most of us turn away from it as a tool of sensible policy making. We instead (and this is a truly brilliant part of the book) turn to corporations to make good policy in government’s stead. We push for “corporate social responsibility” and praise corporations who agree to do the “good” thing, imagining that this means something other than the “money making” thing. This, Reich says, is “politics diverted” – trusting companies to do good policy rather than getting government to set good policy, imagining “corporate social responsibility” will produce something different from corporations maximizing profits.
This is a critically important point for people to get — and one that many good thinking souls don’t yet agree with. It’s related to an answer I gave to a great question by Jon Zittrain at the Corruption vAlpha lecture. As I said there, we need to understand the nature of the corporation — to make money — and come to love it, and yet, to keep it in its proper place, just as you can love a tiger, but know that it’s not the sort of thing that should play with your kid. (Here’s the question and answer). Corporations are not more efficient governments. They are instead increasingly efficient money making machines. And while there’s nothing at all wrong with money making machines — indeed, wealth and growth depends upon them — there is something fundamentally wrong with trusting these machines to restrain the drive for profits in the name of doing the right thing. The cushion that enabled that in the past (relatively limited competition) is gone. The job of GM is even more now to make money for GM.
Recognizing this point forces you to recognize how important it is that we make government work. It is government’s job to set the appropriate limits on corporations (and individuals) so that when corporations and individuals pursue their self-interest, they will not harm a public interest. If government were doing that sensibly, it would force carbon producers to internalize the negative externality of carbon (something our current government doesn’t do), just as it would force those who benefit from creative work to internalize the positive externality of creativity (something our current government is obsessed with doing).
And this leads to the link with the work on corruption: for notice (surprise!, surprise!), government is pretty good at forcing internalization when it benefits strong special interests (again, copyright), and not when it harms strong special interests (again, carbon). Here, and in a million contexts, the government is coopted by the powerful influence of powerful interests. Reich points to the obvious and well known examples of money buying (indirectly) influence. He also points nicely to the “corruption of knowledge” as he calls it, coming from corruption policy analysis. Nothing gets fixed till we fix these corruptions, powerfully identified in this very clearly and beautifully written book.
[Criticism? Only one small nit: Reich works hard to argue that we should not think of the corporation as a person. Corporations have no “corporeal form,” he argues. A corporation instead is just a legal form for the activity of people. The law should therefore focus on those people, and not on this corporation. The corporation should therefore have no rights. It should also have no “corporate” responsibility. The only rights and responsibilities here are rights and responsibilities of people.
I agree that in lots of cases, the law should focus on the people, and not the corporation. But I reach that conclusion based upon the utility of focusing upon the people inside a corporation rather than upon the entity itself. In my view, however, there are times when it does make sense to think about the corporation as an entity and to allocate responsibility in that way. Reich concedes as much when it is civil liability at stake. But focusing on the non-thingness of a corporation, he rejects criminal liability for the corporation. I reject a thingness theory of criminal responsibility. My view is informed by the work of (in my view) one of the most brilliant members of the legal academy, Meir Dan-Cohen. His work is not online (not brilliant), but see, e.g., his Freedoms of Collective Speech, 79 Cal. L. Rev. 1229 (1991). ]
Buy (Amazon, B&N) or borrow this book soon. And thank you to Robert Reich. Continue reading

Posted in Corruption, Lessig 2.0 | 45 Comments

Support CC: blogs in Brazil

We’re pulling together an important (as in it is important it succeeds) strategy to enlist blogs in the work we’re doing to support CC. Thanks to Jardel who has a corner of the Brazilian blogspace. He beat us to the punch.
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Posted in creative commons | 4 Comments

On following the rules

As I think through this issue of corruption, I am brought back again and again to the differences in an institution’s sense that the rules should be followed. For example, the great thing about the Supreme Court — an institution I would criticize on substantive grounds in lots of contexts — is that the culture of the place is that people follow the rules. Perhaps clerks do more of the writing than one would want, but the institution is basically doing what the framers imagined it would be doing. And it does so with everyone in that institution following the rules. Compared, for example, with the FCC, where the staff apparently thinks following the rules is just an option, not a requirement, in my experience at the Court, no clerk would ever have had any contact with a party to a case, or discuss the proceedings of the court during the time it is considering a case. The difference, again, as I argue in Corruption vAlpha, is one of culture.
So then this story about the Texas legislature is just perfect in making the same point. The point is not really about the significance of the act. It is about the culture it reveals. There is a plain rule the prohibits what you will see in this video. The Texas legislature is a culture where the rules apparently don’t matter.

Thanks to Laurie for linking me to this via BlacklistedNews. Also directly related: Elizabeth Williamson’s piece in the Post: Getting Around Rules on Lobbying. Thanks to friends who sent the link to make sure I saw this. Continue reading

Posted in bad code, Corruption | 11 Comments

Corruption Interview – short version

I got off a plane in Copenhagen and drove directly to this interview. Continue reading

Posted in Corruption, Lessig 2.0 | 18 Comments

Corruption Lecture – alpha version

As promised, here’s the first lecture on corruption. It is an alpha version. I’m eager for comments and feedback. My first written feedback came from Aaron Swartz, with whom I had conspired last winter about making this move. I’ll post his comments and some replies later today. I’ve also set up a page on the wiki where I will collect significant versions of the argument. Summary and criticism there would be helpful. Continue reading

Posted in Corruption, Lessig 2.0 | 76 Comments

CC support buttons

Support CC - 2007 Support CC - 2007 Support CC - 2007 Support CC - 2007 Support CC - 2007 Support CC - 2007

As I mentioned last week, we have launched CC‘s annual fundraising campaign. You can get support buttons for your site or your blog here. They’re all based upon the new layout to the CC site. As you can see above, each button frames a different part of the world.
This is an important year for us — 5th anniversary, etc. It is a difficult time of the year for me. You don’t go into academics because you like market tests. And each year, I cower from the test that this campaign is. If we can’t grow the number of people supporting CC, we’re not doing our job. Period. That sort of simple test doesn’t stalk a professor.
But there is no tenure for nonprofits. So we can’t avoid this push, and test, each year. Please help make it as simple as possible. Give way more than you can afford. Often.
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Posted in creative commons | 2 Comments