Lessig Blog Archives

When disruptive new technologies have emerged that changed the way in which consumers have gotten access to news and entertainment (e.g., radio and cable television), the existing legal structures of the Copyright Act often could not accommodate the challenges posed by the new technology. In the early case of piano rolls and later with radio and cable television, for example, Congress adopted compulsory licensing legislation as a means of appropriately compensating content owners while simultaneously encouraging widespread use of the new technologies.

With P2P music file sharing, we have witnessed a range of dramatic responses from the content owning community: massive lawsuits against individuals, including innocent children and grandparents; invasive efforts to get customer information without the intervention of a judge through misuse of administrative subpoena provisions of title II of the DMCA; and now the Induce Act in the Senate.

Fred von Lohmann and his colleagues at EFF have suggested an innovative alternative to litigation and traditional compulsory licenses. Their approach, described as a “voluntary collective licensing” system, is aimed at compensating artists while ensuring that new technology will flourish. I would welcome your thoughts on whether this is the kind of approach we in Congress should implement or whether there are other alternative means of moving beyond the unproductive debates of today to a new legal regime for music file sharing.

As Mark Frauenfelder and others have documented, the Guthrie family and probably Woody himself think the JibJab parody just fine. In the words of Grandaughter Cathy Guthrie (pictured here), “this parody was made for you and me.”

But here’s the thing: much of the JibJab Brouhaha was actually caused by a lack of author’s rights….

I’m not speaking heresay: the point is that who controls the rights can matter as much, if not more, than what the rights are. Here, its publisher “The Richmond Organization” (TRO) and not the family, who controls the rights to “This Land.” And Richmond’s reaction was the opposite of Cathy’s: “The damage to the song is huge,” said Kathryn Ostien, director of copyright licensing, because “this puts a completely different spin on the song.” (Why “different spin” = “huge damage” I’m not sure).

Yes, authors and creators can suffer fits of pique that can hurt the markets for secondary works. But their reasons for asserting copyright can be the subject of reasonable disagreement (example, colorized films). All that’s a peppercorn compared to the historic abuses of copyrights controlled by publishers and disseminators.

The present tension between consumers and copyright is predated by a centuries-old war between publishers and authors. Those who read this site ought think carefully about how often the public and authors are actually on the same side.

Every so often someone defends, with a straight-face, that which we think undeniably wrong. They say, for example, that the holocaust never happened, or perhaps that slaves actually liked slavery, or that some degree of torture is fine as government policy. Orwell called this ability “Blackwhite,” or “a willingness to say black is white when party discipline demands this.” In its advanced form it leads to “the ability to believe that black is white, and more, to know black is white, and forget that one has ever believed the contrary.”

Michelle Malkin, a journalist, has released a book that is does just this: it defends the eviction and incarceration of more than 70,000 American citizens during World War II. Her book “In Defense of Internment,” takes the position that the Government was right to round up the Japanese then, and Arab-Americans now. The mainstream position that the internment was wrong (expressed in Ronald Reagan’s apology), Malkin attributes to a “conspiracy.”

It is true that, on rare occasion, something everything takes for granted is wrong, like, say, the Bohr model of the Atom. But more often, moral sense is restored by rebuttal — we remember that black is, in fact, black, and regain our senses. This time sense is restored by this week’s must-read Volokh Conspiracy which features two historians who destroy the book in every aspect. Malkin, it turns out, is more Ahmad Chalabi than Albert Einstein.

As historian Greg Robinson concludes, “Malkin’s book is not a useful work of history, but a polemic that relies for its attraction on sensationalism and overstatement.” Or in the words of Eric Muller, “A person certainly can ‘provoke debate’ (uninformed debate, at least) by going about things in this way. But a person can’t “correct the record” in this way, or report history in a way that anyone ought to believe. It’s just not possible, and it’s not credible.”

But there is more than historical accuracy or the career of a silly journalist at stake. The role of the Constitution in wartime is defined by a consensus that Korematsu was wrongly decided. Thankfully, that consensus is unlikely endangered by this soon-to-be-forgotten leaflet. If you want to be radical, you have to actually be good.