never again

So I did something today for the very last time in my life. I’m publishing a comment in the Minnesota Law Review about an article by Brett Frischmann titled “An Economic Theory of Infrastructure.” His is a great article; I was happy to write the comment.

But today, on the brink of publication, I had to confront the “Publication Agreement.” In order to give the Minnesota Law Review my work, I have also to give them my copyright. In particular, they get the “exclusive right to authorize the publication, reproduction, and distribution” of my work. They have in turn sold that right to Lexis and Westlaw.

Never again. It has taken me too long to resolve myself about this, and it was too late in the process of this article to insist on something different. But from this moment on, I am committed to the Open Access pledge:

I will not agree to publish in any academic journal that does not permit me the freedoms of at least a Creative Commons Attribution-Noncommercial license.

This is, of course, much less than RMS insists upon. My views are more confused than his. I am not yet convinced of this point w/r/t books. I am not yet convinced w/r/t eliminating the non-commercial restriction. But, still, there is no academic or scholarship related reason why the publishing of academic works today should require more of me than this. And to the extent academic publishing demands more of me than this, I will not support it.

At this point, I know of one law journal that may, soon, be able to publish my work. I hope there will be more. But until there are, there will be no more law review articles by Lawrence Lessig – a relief to many, no doubt; a loss to none, to be sure.

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58 Responses to never again

  1. Dan Hunter says:

    I’m delighted to see that you’re directing attention to this issue. As I argue here it is remarkable that the law reviews that have published the seminal articles by you and other copyright reformers detailing the problems with copyright, should be the same journals which continue to maintain such restrictive copyright assignments. Indeed in the survey reported on in the article, I note that it is the top law reviews which tend to have the most onerous conditions, and which appear to have been directly coopted by Westlaw and Lexis.

    Those interested in following this issue and finding resources about open access in law might like to have a look at my recently-started “Open Access Law” blog/site. It’s early days, but eventually it will have some useful information.


  2. Dr. Lessig,

    I’ve been reading your blog for about six months now and this is the first time I have felt it necessary to directly take exception with something you’ve said. Regarding RMS’s view about books, it is my understanding from him that he does not have the same standards about modification in regards to non-technical writing. I’ve heard him say this directly, both in front of an audience and in one-on-one conversations. There is certainly a need to allow for modification in a technical work, such as a computer program or technical manual, but a law review is an opinion and the issues of modification are different, since no one else can speak with your voice.

    I don’t think that you’ve made this statement with any indended ill-feelings toward RMS, but I felt it necessary to bring my point up since too many people already think that RMS takes more extrme views than he does.

    I do appreciate your work, and your commitement towards this policy of sharing and appreciate the fact that I can read your thoughts on your blog.

    – Serge Wroclawski

  3. s.cotus says:

    Well, since my work was just rejected by that law review, I can only wonder if me, as a non-professor would be able to wield the same power as you.

  4. Tim Hadley says:

    I don’t know a thing about the current editors of the Minnesota Law Review, but I’m a little surprised to hear that they offered no alternative to such a restrictive agreement.

    When I was executive editor of the Minnesota Journal of Global Trade in the offices next door, we had more than one form of agreement. One was modeled on the Law Review’s, but we had also devised at least one less restrictive agreement. If I recall correctly, we obtained few if any exclusive rights under that agreement.

    I remember rejecting a licensing agreement from an electronic database service that would have required us to obtain the exclusive copyright from all authors.

  5. Vavoom says:

    Kudos. I think you’re the first professor I’ve ever known to take such a bold stance. The question is — in an environment where publishing in premiere journals is of paramount importance, will others follow your lead? Haven’t we constructed our academic centers of excellence around the concept of publishing our results in well regarded peer reviewed journals? If that’s the case, it seems sensible that journals will have the upperhand with copyrights until we reconsider how we evaluate academic excellence.

  6. DNL says:

    The Law Review on which I serve uses rather restrictive agreements by default (read: inertia), but will cater to individual authors. I know for a fact that we did something like use a Att/NonCom for an author in a recent issue.

  7. Lessig says:

    Serge — I don’t mean anything negative about RMS at all. Quite the contrary. What I mean is that he has a much stricter policy for himself that I’m adopting — not that he doesn’t distinguish different kinds of creative work.

  8. Prof. Lessig-

    I’m glad to see you leading the charge here by your stand against publication agreements.

    As a frequent contributor to a number of magazines, I have long disliked the Draconian intellectual property provisions found in the standard contributor contract. Some are more generous, in that they merely ask for a (usually exclusive) license to publish for some period of time, and/or right to first publication. Some ask that you sign over the full rights to an article, including any and all derivative works. (I’ve long wondered whether such contracts would be enforceable in a state like California that limits employment contracts with non-competition clauses, but that’s another matter.) In any event, this is an uphill struggle. But if notable scholars like you and aspiring writers like me push back, even just a little, perhaps we can achieve some progress.

  9. Jeez, I wish I had sufficient academic rank to be able to tell the IEEE (perhaps the major publisher of electronic, computer, and software engineering journals, and one with the most obnoxious copyright policies) where to go…

  10. blaze says:

    here here. This has absolutely nothing to do with copyright or creative commons.

    Academic journals are a terrible terrible dinasour.

  11. Wonderful news!

    One method I’ve used in a physics journal is to
    return the copyright agreement striking out or rewriting the objectionable
    clauses: e.g. changing exclusive to non-exclusive or
    giving them only 6 months of exclusive commercial rights
    (with no restriction on others non-commericial rights).
    I didn’t get any complaint from the publisher.

    Of course, the printed copy does not inform the reader of his or her
    rights to copy or redistribute the article. Asking for that extra honesty probably
    wouldn’t have flown under their lawyers’ radar.

    Another option is that lawyers make the equivalent of the physics preprint server. It does no peer review but ever more interaction in physics goes on through the preprints, with no one (except hiring and tenure committees) bothering to wait for the eventual hardcopy journal version. But from what I understand about law reviews, they do a lot of helpful editing and checking, whereas most physics journals do not (they often just publish the TeX/LaTeX file provided by the author); so a server might have a bigger battle to win acceptance.

    From now on I will publish only on the preprint server, or wherever else that will allow the copyright notice I put on a recent paper there:

    You have a perpetual, worldwide, irrevocable, royalty-free license to copy or republish this document in any medium and for any purpose, so long as it and this copyright notice remain unchanged.

  12. Nick says:

    Bravo! I’m a law student who has just fought a brutal copyright battle with my law school over the copyright in my note. The good news is that, thanks to the help of several in copyright law academia, my law school is re-evaluating its journal copyright policy. Unfortunately, publication of my note was sacrificed in the process. Still, the fact that we even got our school to move on this is more than I had initially hoped for.

  13. Peter Rock says:

    W/r/t Stallman – “What I mean is that he has a much stricter policy for himself that I’m adopting”

    You do say “for himself” with regard to Stallman and here I think is a key point. I can understand why someone would personally want to waive the non-commerical requirement. An example…

    A while back I was in Bangkok, Thailand. Although I feel it is a rather sad state to be making money off of other’s creativity, I would much rather see the 10-year old boys selling bootlegged copies of musician’s and moviemaker’s work on the street rather than selling their bodies in Patpong. And of course, this type of situation is present in many places in the world.

    On the other hand, there are teenagers in North America attending university who likely do not need to make money as desperately as some living on the streets in poorer nations. Like the U of A student who distinguished himself from the rest of the p2p group by selling the content that he was downloading. What he allegedly did is – quite simply – rude and in poor taste.

    I think attribution is the most important right with regards to copyright law. It is sacred and should be protected. And I do not see any harm in protecting this aspect.

    Personally, I don’t see why anyone would want to stop others from making money from their work – and if second-hand profiting is actually occuring, it is a strong indication that the author him/herself is likely profiting already anyway.

    But at the same time, I think it is rather rude to sell other people’s work when the author does not intend for this to happen…unless you are doing it to put food on your plate. Just as I have no problem with someone taking money from my wallet to buy bread to eat. That would be great if they asked first, but I’m certainly not going to “take action” against them.

    Every situation is unique.

  14. Prof. Lessig, I think I can speak on behalf of my journal’s editorial board when I say we’d be happy to work with you on your next article. Our journal was founded on principles of classical liberalism, and we’re highly sympathetic to your point of view.

    Check out our website.

    If you like what you see, please do be in touch with us. (that goes for the rest of you, too.)


  15. Peter Rock says:

    An interesting disclaimer…

    My teaching, if that is the word you want to use, has no copyright. You are free to reproduce, distribute, interpret, misinterpret, distort, garble, do what you like, even claim authorship, without my consent or the permission of anybody.

    – From pg.1 of U.G. Krishnamurti’s book “Mind is a Myth

    Note that U.G. Krishnamurti (called a “spiritual terrorist” by some) should not be confused with the more widely known Jiddu Krishnamurti – they are not even related. Although I think U.G. is far-out there, I think his view on copyright is interesting given the context of his work. Especially the part “even claim authorship”.

  16. Perhaps it’s worth drawing to your attention SCRIPT-ed, the on line journal of the AHRB centre for IP and Technology law ,, which has its very own open-access license (SOL) devised by its technical editor Andres Guadamuz (now also leading light of CC Scotland). We can discus it when you visit for the Science Festival perhaps 🙂

  17. Eric Rasmusen says:

    Good for you!

    This is a big problem in economics, my own field. North-Holland/Elsevier is a publisher notorious for it. Legally, the author can’t post his own papers on his own webpage, or xerox them for his students, since he’s given the publisher the copyright.

    I have an uneven policy on this, but I’ve pulled submissions from journals after they refused to consider modifying their agreements. I also refuse to referee for any Elsevier journal, and once turned down an inquiry into whether I’d be an editor of one.

  18. Brava Professor, Brava. You really earn that title, since Pro – fessor is literally the one who speaks the truth. And you are right, a loss to none since those who value your opinion will come here to find it. Information wants to be free, it is up to us to give it freedom.

  19. Joseph Pietro Riolo says:

    Not everything is lost.

    Professor Lessig can choose to terminate transfer
    or license of copyright to the law journal during
    the five-year period after 35 years after the date
    of grant. See Section 203 for more details.

    All he has to do is to create calendar for each year
    until 2040 and write on the square for March 16th
    in the calendar for 2040, “TERMINATE!”, preferably in
    red ink.

    Joseph Pietro Riolo
    <[email protected]>

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  20. William Walsh says:

    Have you considered self-archiving?

    Info from the Budapest Open Access Initiative (BOAI) at:

  21. One reason to allow for-profit redistribution is for
    archival longevity. Over the next 50
    or 100 years, will non-profit or for-profit organizations
    best preserve digital documents as file formats and
    storage technologies change? It might depend on the subject or the particular document. To hedge bets, allow a work to be
    stored and displayed and recopied by everyone, even if one of the links in the chain is a for-profit organization. Then
    search engines will almost certainly find it.

  22. As the current Submissions Editor of the Berkeley Technology Law Journal, I can assure you that all of our authors retain the copyrights in their respective works, allowing them to choose the licensing terms under which their articles are published. In fact, our Annual Review of Law and Technology, composed entirely of student-authored notes, will contain several Creative Commons licensed pieces this year.

    We would, of course, be happy to review any submissions you forward us.

  23. If you’re an author seeking to change the terms of an onerous publication agreement, check out the Model Author’s Addendum at

    It changes the terms of an agreement so that you retain the rights to use your article and to permit others to use it for non-commercial purposes so long as you and the journal receive credit.


  24. Nikki says:

    Professors such as Lessig, with the clout to back up their positions, should take the lead in this battle. Speaking on behalf of student-run law journals (as a former editor of one), I note that only those publications with university backing have the luxury of not creating revenue opportunities to keep their doors open. Also, one way law students learn to write is by working with authors of articles on legal topics. If these student-run, self-funded publications don’t get submissions from the likes of Professor Lessig, they’ll have tough time maintaining their subscriber bases and other revenue-generating initiatives. Certainly some compromise is in order so that authors maintain the rights they choose to maintain and publications have an opportunity to generate life-sustaining revenue.

    Also, unless I’m missing something, most law reviews and journals associated with law school are not “peer-reviewed,” they are student-reviewed.

  25. three blind mice says:

    it is very encouraging, professor lessig, to see you using the exclusive ownership of your work to exert control over others. it is also something of a delicious irony.

    your example illustrates the practical importance of intellectual property and how important it is that an author and artist to have control over how his or her work is distributed!

    imagine the horror. without your copyright those evil law review people could reprint and distribute your work against your will.

    well done, sir. keep up the good work.

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  27. Ryan Miske says:

    The Minnesota Law Review would be happy to grant you the copyright, all you have to do is ask. Professor Brett Frischmann, for example, requested the copyright for his article almost four months ago, and it was granted without question. He simply granted the Review the nonexclusive license to authorize electronic reproduction by Westlaw and Lexis. Along with other journals, we have been engaged in the process of reviewing our contract language to make it more friendly to authors. We recognize that more authors would like to retain their rights without having to ask.

    Thank you again for commenting on Brett Frischmann’s piece that is coming out in our April issue. We look forward to receiving your signed contracts with your modifications.

  28. Larry, I was going to write that the Minnesota Law Review probably would grant you your copyright (and more) if you just asked, but they beat me to it. 🙂

    Of course it is particularly heinous that you have to ask, but then again they seem to be reviewing their rules.

    Why the restrictive NC? Why not just BY? Or do you mean that a journal should at least grant you these rights?

    Also, several people asked you if you had a vector version of the image you posted in your previous entry. I made a half-hearted attempt at recreating one, but of course a complete version from the source would be best.

  29. Three Blind Mice wrote: “It is also something of a delicious irony.”

    No it is not. I try not to make it a habbit of responding to trolls, but casual readers of this blog might get the impression from the Mice’s comment that Larry Lessig is an opponent of copyright. As far as I understand, he is a proponent of copyright.

  30. Lessig says:

    Indeed you are right, Mr. Collin.

  31. Ed Lyons says:

    I also agree with Mr. Collin.

    Professor Lessig is merely trying to exercise his own control over his own work rather than turning it all over to someone else.

    Just about all resources are controlled by someone. What matters most is who owns something and what happens when too much control is invested in too few hands. This problem manifests itself in natural resources, real estate, money, and as Professor Lessig illustrates so vividly: culture.

    If Professor Lessig refuses to sit in the back of the copyright bus, Amen! Let’s all boycott publications who refuse to honor what he wants.

  32. Jardinero1 says:

    I thought this was some kind of enormous parody.

    Everyone is patting Professor Lessig on the back for his principled stand. If I read correctly, Professor Lessig agreed to their demands. That’s not taking a principled stand. If he refused to submit the comment and then ran it on this blog with an apology to Frischmann; that would be a principled stand. Ironically, it might also be more expedient for Frischmann since more human eyes will see it on this blog in one day than will ever see it in the Minnesota Law Review. That would make it more than a principled stand; that would make it a practical stand.

    As I read this, I kept chuckling and thinking of the person who vows never to drink again after a binge; or the man who swears he will remain faithful after a dalliance. We’ll see.

  33. Professor Lessig:

    I was presented with similar agreements regarding both of my published articles. In each case, I flatly refused. Instead I offered my work to UCLA and Loyola under a non-exclusive license allowing them to publish for commercial or non-commercial purposes in perpetuity while I retained the copyright. I received only limited resistance.

    I remain comfortable with these institutions reaping whatever limited financial gain that may be attributable to my work. I consider it a small donation in support of academia. My professional practice, however, is based on the aggressive protection of my client�s intellectual property rights. As you might imagine, this posture often puts me in direct opposition to your positions. I maintain that the control of copyright should reside in the author in all but the most limited of circumstances and that only the author should determine what material should be disseminated without compensation.

    With that in mind, I think it is outrages that the Minnesota Law Review did not offer a more reasonable arrangement to an author and professor of your caliber.

  34. three blind mice says:

    branko collin, if you have spent anytime here you would know that the mice are not trolls – we are merely dissenters.

    As far as I understand, he is a proponent of copyright.

    merely semantics our good man. let’s be honest here. in the rip, mix, burn world of free culture, copyright exists only as a means for an author to donate the fruits of her labor to the commons where it may reside unpolluted by commercial interest.

    you see it is not enough to give your work away for free, it is vital that you have the legal tools to make sure that no one else can make money from it either!

    god forbid that commercial outfits like lexis/nexis would use copyright to justify the investment in providing useful on-line information. information wants to be free. certainly, it is only a matter of time before unpaid volunteers create these vast databases.

    in free culture copyright is simply a tool to keep free information free, it is no longer a capitalistic economic incentive.

    it would certainly be a delicious irony for the free culture crowd to see copyright hoist by its own petard, but the human nature of self-interest no doubt has the stronger kung-fu.

  35. jb says:

    hmm. you mean

    1. no lessig article unless the publication will allow you to license your article under BY-NC (or BY).


    2. no lessig article unless the publication itself is licensed under CC ?

    i guess you meant 1, as you license your wired columns under BY, but maybe you have a different rule for academic publications.

  36. Peter Rock says:

    “we are merely dissenters”

    No you’re not. You are a follower who apparently suffers from “split rodent personality”. Dissenters do not hide. True dissent is public. True dissent is putting your name on something, admitting when you misjudge, and continually pressing for change no matter what Anonymous Cowards waste their time commenting upon through discussion blogs.

    “in the rip, mix, burn world of free culture, copyright exists only as a means for an author to donate the fruits of her labor to the commons where it may reside unpolluted by commercial interest”

    This is where you are wrong – oh IP Jedi Believer. Commerce is what the rip, mix, burn world is all about. Take, take, take and make, make, make. It’s a damn mantra for christ’s sake. Wake up and smell the coffee you…you…trio of rodents! Are you not aware at all? Are you really THAT focused on protecting the attitudes of old that you are completely blinde….oh, wait….never mind.

    But seriously…”unpolluted by commercial interest”?

    Are you kidding?

    Queen’s “Under Pressure” followed by the tremendously lame “Ice Ice Baby” was, IMHO, tortuous to live through – but most profitable for both artists and IP lawyers alike. There was a settlement and all sorts of uproar over IP – just what you leeches like – a real IP bloodfest. Quit following the Eisner propaganda and think for yourself. You three rodents are so “blinded” by making quick $$$ from law interpretation/manipulation that you can’t even see straight. Watch who you cane young (wo)man – you just may be biting the hand of your feeder. Mac is more on your side than you think.

  37. Delaune says:

    Based on the number of law reviews (including Minn. L. Rev.) indicating willingness to accept CC licensed submissions, or at least to consider accepting them, I’d say we’ve come a long way since 1996, when I was on the board of a big name law review.

    Back then, of course, there were no CC licenses. But if you were a submitting author, and you wanted to retain your own copyright in a work of yours we published, you had to a) ask for it, and b) “be important enough” (read “have market power”). Lessig would qualify under that standard now (cf. West Wing) but probably not then, and indeed, we routinely denied requests to publish articles submitted by insufficiently “important” authors who wished to retain copyright in their works. (Shame on us.)

    I’m glad to see that particular culture crumbling; I hope that all authors can be the beneficiaries.

  38. Joseph Pietro Riolo says:

    To Peter Rock,

    Regarding the “disclaimer” that you quoted from U.G.
    Krishnamurti’s book “Mind is a Myth”, I checked the book
    and it is not clear whether he ever wrote anything in the
    book. It seems that Terry Newland fixed the conversations
    with U.G. Krishnamurti in tangible thing (that is, book)
    and therefore, Terry Newland is the one that could be
    considered as the author of the book for the purpose of
    copyright. If my analysis is correct, U.G. Krishnamurti
    has no standing (to speak legalese) to proclaim that the
    fixed expressions have no copyright.

    But, assuming that U.G. Krishnamurti has the standing to
    proclaim that his teaching has no copyright, he is wrong
    on that point. Teaching by itself is not copyrightable
    and therefore, copyright can’t be claimed or disclaimed
    in his teaching. His statement saying that his teaching
    has no copyright therefore is meaningless.

    Joseph Pietro Riolo
    <[email protected]>

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  39. Peter Rock says:

    “Terry Newland is the one that could be considered as the author of the book for the purpose of copyright”

    So do you think that if I made my own copies of “Mind is a Myth” and began to sell them that Newland would have the legal weight to stop me? That would be a fascinating legal case!

    “Teaching by itself is not copyrightable and therefore, copyright can’t be claimed or disclaimed in his teaching. His statement saying that his teaching
    has no copyright therefore is meaningless.”

    I understand. So what is “it” then that is copyrighted by Newland? It appears as though there is nothing copyrightable if the expression contained in the book is defined as “a teaching”. For Newland to attempt to reserve publication rights appears paradoxical as there is nothing to be claimed.

  40. Stephen Lindholm says:

    I think what you say about law journal copyrights is true. I would
    actually prefer to have the articles immediately put into the public
    domain (and marked as such), rather than secretly maintaining the
    copyrights myself, so that people would feel free to redistribute what
    I write if they think it’s interesting. I don’t think anyone’s ever
    become rich from academic article royalties, and I doubt I’d be the

    I agree that Westlaw and Lexis are responsible to some extent, but I
    actually got a get-out-of-jail free e-mail from the corporate legal
    department at Lexis. They’ve said it’s all right to put a notice in my
    “author footnotes” releasing the article to the public domain five
    years after publication. Perhaps I could have asked for a lesser time
    period, but it took months for my request to percolate through, so I
    didn’t push my luck. I’ve published two articles so far, and both
    journals were willing to put in the endorsement when I forwarded them
    the e-mail.

    I put a notice on the bottom of all copies of articles I send out (for
    any purpose) that the article is released to the public domain. I’m
    not a fan of “licenses,” for personal preference and for a legal

    * I see “IP” licenses as a pathology of greedy computer software
    makers which have metastized into a lot of other things where they
    have no business being, and I think authors are a little hypocritical
    when they demand to hold onto some rights while telling publishers
    that information deserves to be free.

    * The legal reason is that under 17 USC 205(e), as I understand it, a
    prior non-exclusive license grant is invalidated by a subsequent
    copyright transfer unless the grant was signed. I don’t see any reason
    this wouldn’t apply to redistribution licenses, but the Free Software
    Foundation’s general counsel is a law professor at Columbia and he
    thinks otherwise about the GPL, so who am I to argue. Maybe he thinks
    estoppel will protect the GPL, but that doesn’t seem very prudent.
    Maybe there’s some spot-on caselaw out there interpreting the word
    “signed” very broadly that he knows about.

    Some authors are really concerned about having their work attributed
    to them. I think the practical risk for academics is almost nil
    (unlike, say, a children’s book writer or a photographer), and there
    is the very serious problem I mentioned that an author could be forced
    to revoke a previously granted license by someone who later buys out
    his copyright. (This supposedly happened in the Mattel / cphack hubbub,
    although, again, free software people insist otherwise.) There is also
    precedent (Waldman Publishing v. Landoll) saying that the Lanham Act
    (and perhaps state law) protects even public domain works from mis-
    attribution, although that is of course far from settled.

    Other authors simply believe that they should be entitled to hold onto
    their copyrights, under some kind of Lockean theory of property. I
    don’t buy that. On a practical level it’s hard to convince journals
    with that kind of argument, when Westlaw and Lexis and offering higher
    royalties for acquiring the author’s copyright. On a philosophical
    level, those same arguments support infinite copyright terms and
    software patents.

    One could transfer the copyright on journal articles to a third party
    before journal submission, but that’s near-fraudulent at the very

    The notice on the bottom of my articles puts journals on notice that
    (a) I’m the kind of author who cares about that sort of thing and (b)
    there is no more copyright to “transfer.” The edited article might be
    deemed a derivative work, so I think having the edited article go into
    the public domain after five years is a fair compromise. I also check
    to make sure that the journal will let me post the article on my own
    web site (a matter of contract, not copyright), in order that in the
    meantime people who are interested in my work will have the
    opportunity to read it.

  41. Joseph Pietro Riolo says:

    To Peter Rock,

    Yes, Terry Newland could have prevented you from making
    copies of his book and selling the same. However, I notice
    that there is no copyright notice in “Mind is a Myth” and
    it was published in 1988 presumably in India. If it were
    published in the U.S., the book would be in the public
    domain because of the lack of copyright notice (before
    March 1, 1989) unless it is cured. I don’t know about
    the copyright law in India and I can’t say if copyright
    notice is required to gain copyright in a work in India.
    Moreover, it is a foregin work which has a little more
    protection than domestic (in the U.S.) works. Without
    knowing India’s copyright law, I could not answer properly.

    You asked what is “it” that Terry Newland could claim
    copyright in. That “it” is the set of all words that
    appeared in his book. If the book teaches you something,
    the fluid, unseen, unfixed knowledge that it imparts
    to you is wholly uncopyrightable. But, you can’t simply
    memorize the words in the book and speak the same words
    to teach others. That is called performance which is
    one of the exclusive rights in the U.S. copyright.

    Joseph Pietro Riolo
    <[email protected]>

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  42. David Geraud says:


    The proof that it is never too late to make coherent its acts and its words.


  43. Dru says:

    I will read Lessig’s work wherever he publishes it (I like books more than journals anyway). And maybe his “never again” statement will be retracted now that several journals have offered him any contract terms he wants. From the standpoint of a completely selfish fan, though, a Lessig-shaped hole in the law journal world could be filled by four or five up-and-coming, yet-untenured writers. For a moment there, he had our hopes up. 🙂 Perhaps author-unfriendly contracts foster market entry by new players? Is there an anti-oligopoly effect?

  44. Esther Hoorn says:

    Dr Lessig,
    I am happy to see that you set a public example of the possibilities of writers and boards of law reviews to negotiate licenses that balance all interests involved. In the Netherlands a nationwide program involving all university libraries built an network of digital academic repositories (DARE). I believe this architectural possibility of self-achiving gives value to the decision not to hand over the author rights to the publisher. In the project Truth or DARE we seek to challenge authors in the field of law to explain their arguments if they decide otherwise. And some authors are indeed succesfully negotiating different license agreements. Because of this project I am very interested to know more on similar initiatives in the field of law. And I am a bit puzzled by remark:
    At this point, I know of one law journal that may, soon, be able to publish my work..
    I know more, but are we to expect a PLOS Legal one of these days?

  45. Joe Gratz says:

    You’ll be pleased to note that Minnesota Law Review’s sister journal, the Minnesota Journal of Law, Science, and Technology, has recently revised its publication agreement to explicitly allow authors to distribute their works freely for noncommercial purposes, with attribution to the author and the Journal. This was intended to remove uncertainty about whether authors could post their articles to SSRN, but has the happy side effect of making our publication agreement compatible with most Creative Commons licenses, should the author so choose.

    Indeed, the last issue of the Journal contains my Note, which was released under a CC Attribution-NonCommercial license.

  46. wainer says:

    Entirely agree, but entirely unworkable for me as a young scholar.

  47. Rob Myers says:

    if you have spent anytime here you would know that the mice are not trolls – we are merely dissenters.

    If the “dissenters” could avoid repeatedly mischaracterising people’s positions on copyright that would go a long way to making them look less like trolls.


    One thing that is interesting in Lessig’s original post is his characterisation of BY-NC as providing freedoms. For the original author, NC reserves a freedom (you are free to exclusively exploit your work commercially later). And for end-users, BY-NC allows free access. But for everyone else (publishers, other writers), neither BY or NC are freedoms, they are restrictions. In comparison, the Stallmanian “four freedoms” are for everyone, especially producers.

    This is possibly a problem for the CC licenses; they can provide unequal mixes of freedoms and responsibilities. But in practice an unequal mixture is much better than none at all.

  48. don't hate the mice says:

    Though I don’t agree with much of their opinions, the three blind mice have often posted useful and provocative thoughts here. They see the opinions many of us share and happen to disagree. Presenting another opinion does not make these mice into trolls. A common criticism of the world of blogs is that people tend to spend time reading only things they agree with, and no progress is ever made since dissent is crushed.

    In fact, it has crossed my mind on several occasions that there are no mice – that perhaps Professor Lessig himself would post arguments contrary to his own point of view to create discussion under another name. I doubt this is actually the case, but I do think the points the mice make are among the most difficult to counter.

  49. three blind mice says:

    thank you don’t hate the mice for your kind comments.

    we are huge fans of professor lessig and have learned more from him and from the rest of you who challenge our ideas than from hanging out with those who reinforce them.

    this blog is indeed similar to many other mutual admiration socities on the web, but speaking from our personal experiences, it is also remarkable for the way in which dissenters such as we are generally well-treated.

    of course when we get a little too close to the truth, we are called names, but this means nothing to us. cut of our tails and they grow back. heck, compared to the farmer’s wife and her carving knife you people are friendly little pussy cats.

    if anything, we mice hope you will sharpen your dull arguments and make this a bit more challenging for us.

    the cheese tastes better when its harder for us to grasp from your hands and we’ve been putting on too much weight.

  50. Joseph Pietro Riolo says:

    Commenting on Rob Myers’ comment dated March 22, 2005
    at 6:05am.

    There is no freedoms in Creative Commons Licenses and
    GPL. The freedoms that they claim to provide are strictly
    privileges that are granted to people who agree to the
    terms and conditions in the license. It is like an
    association that grants privileges to its members that
    are not available to the public.

    People are confusing privilege with freedom. Although
    one of freedom’s definitions includes privilege, people
    are still confusing that definition with other more
    common definitions of freedom that are closer to liberty.

    Richard Stallman is speaking Orwellian language to claim
    that his license (GPL) provides freedoms. It is amazing
    that his propaganda works so well that even three blind mice
    fell for it. Lay people should educate themselves that
    GPL or any license that comes with conditions does not
    grant any freedom but grants only privileges that are available
    only to the people who agree to be bound to the conditions
    as outlined in the license. Where can they find the real
    freedoms? Only in the public domain. But then, the public
    domain proves too powerful for Richard Stallman that he
    refuses to recognize the true freedoms in it and he misuses
    the noble name of freedom to extol his GPL.

    My friends, don’t confuse privilege (found only in one
    definition of freedom) with liberty (found in many
    definitions of freedom).

    Joseph Pietro Riolo
    <[email protected]>

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  51. Some of you do realize you’re being closet socialists by advocating current IP laws, right? 😉 These are anti- free market laws. Where is the capitalist ideal of the free market when talking about copyright/patents? It is all about state intervention.

    The GPL itself merely is against this anti-freemarket communism. Because ideas have more value on the free market.

    Unlike what Bill Gates claims, there are many communists. Who claim it is all for “art’s sake and intellectual freedom through state enforcement,” like a Soviet might claim. They just don’t like thinking of themselves this way. 😉

  52. three blind mice says:

    It is amazing that his propaganda works so well that even three blind mice fell for it.

    joseph pietro riolo, we’re not sure to what you are referring, but we assure you – there’s nothing that richard stallman is selling that we mice are buying. his rotten cheese is being left on the trap where it belongs.

    tayssir john gabbour you are confusing the free market, which necessarily operates under the rule of law, with anarchy. there is nothing socialist – closet or otherwise – about those of us who believe in the ownership and accumulation of private property and the proper role of government in protecting same.

    extending government’s reach into cyberspace is not socialism, it is an extension of the free market to rescue it FROM socialism, or at least wrest it from those who would condemn it to socialist utility.

    long haired hippie people need not apply.

  53. Joseph Pietro Riolo says:

    To three blind mice,

    You are using Richard Stallman’s language to argue
    against him. When you use his language, you
    implicitly accept his interpretation of freedom
    (“Restrictions are freedom.”). There is no “free”
    (in respect to liberty) thing about “free software”
    in respect to Stallman.

    I am sure that you do not intend to do that but it
    is amazing how he can influence your thinking by
    making you accept his own definitions of “free”
    and “freedom”. I don’t have the collection of
    your comments to give you the examples because
    it is copyright infringement to collect your
    comments but I detected some Stallmanism in your
    comments once in a while.

    Joseph Pietro Riolo
    <[email protected]>

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  54. Branko Collin says:

    The freedoms that they claim to provide are strictly privileges that are granted to people who agree to the terms and conditions in the license.

    You amaze me, Joseph. I thought you knew at least a little bit about copyright, but you are missing even the basic stuff.

    Nobody, and I mean nobody, has to agree to any terms or conditions in a copyright license. A license is not a contract.

    You are probably confused with EULAs and Shrinkwrap “Licenses”, which are contracts that pretend to be licenses.

    Lay people should educate themselves that GPL or any license that comes with conditions does not grant any freedom

    Anything you are allowed to do once you meet the conditions, and that you were not allowed to do under copyright, is a freedom.

    The freedoms granted in licenses for proprietary products are usually so limited that they are laughable, and the language of such licenses often dwell on what you are not allowed to do (re-iterating copyright law); but the GPL is not like that.

    Where can they find the real freedoms? Only in the public domain. But then, the public domain proves too powerful for Richard Stallman that he refuses to recognize the true freedoms in it and he misuses the noble name of freedom to extol his GPL.

    Now you are truly sinking to the level of the three blind mice. You are misrepresenting Stallman’s position, who actually has a very nuanced stance on copyright. And he certainly advocates public domain grants for some forms of software.

    You are allowed to not understand why the GPL is what it is. But don’t smear licenses and people just because you do not understand them.

  55. tayssir john gabbour you are confusing the free market, which necessarily operates under the rule of law, with anarchy. there is nothing socialist – closet or otherwise – about those of us who believe in the ownership and accumulation of private property and the proper role of government in protecting same.

    You refuse to believe even in YOUR OWN private property! If you own a computer, the state won’t permit you use it to copy and redistribute certain numbers YOU OWN. 😉 Even though your private property is designed to do it.

    Can’t copy a book you own and offer it freely, probably can’t even make a store to sell your property with 1-click ordering. Can’t sing Happy Birthday for certain purposes. For the Collective Good.

    Eh “komrade,” you might like China, it’s still communist and is happily absorbing our manufacturing and tech. 😉

  56. Joseph Pietro Riolo says:

    To Branko Collin,

    Let’s discuss.

    I will start with your assertion that license is not
    a contract. Not all licenses are alike. Some licenses
    are very simple that they do not add anything to
    copyright in a work. Some licenses are very complex
    that they add so many elements to copyright. Then,
    there are many licenses that are between two extremes.

    These extra elements are not always preempted by the U.S.
    copyright law. Regarding these extra elements that are
    not preempted by the copyright law, where do you think
    that the licensor get the power to enforce the extra
    elements? The answer is the state and common laws that
    cover the agreements between parties. In many ways,
    license is like contract but there are some differences
    that keep them apart. Regardless of these differences,
    the license can be enforced under contract law if it
    covers license. If contract law does not specifically
    cover license, there will be other state laws or common
    laws that cover the license.

    Why do we need state or common laws to deal with license?
    Precisely because copyright law does not cover the extra
    elements as found in license.

    The most common extra element in license is the manifestation
    of agreement between two parties. Copyright law does not
    need any agreement from anyone for it applies to everyone
    in the U.S. But, license needs an agreement because otherwise,
    it is worthless. GPL allows you to do certain things as long
    as you agree to the conditions as stated in GPL. Without
    the agreement, GPL is just a blob of words. GPL has no effect
    on anyone who does not agree to it or does not see it.

    When you sue someone for breaching the conditions in your
    license, you do not use the copyright law to prove that the
    violator agrees to your conditions. You have to turn to
    state or common laws to prove that the violator agrees to
    your conditions. It happens that one of these laws is a
    contract law. In this case, license acts like a contract
    even though you do not want to call it as a contract.

    Before I go on, not all licenses have conditions. A very
    plain license does not need any agreement. For example, an
    author may write a license like this: “I hereby grant everyone
    to copy my novel.” In this case, it is totally unilateral
    meaning that the people who see the license are not obligated
    to do anything to gain the author’s grant.

    Are there any other extra elements in GPL that are not
    preempted by the copyright law? Yes. Here is the list of
    extra elements:

    1. Definition of “program” is broader than the scope of
    copyrightable work.

    2. Definition of “derivative work” is broader than the
    definition of derivative work in the U.S. copyright law.

    3. The requirement to include the notice of disclaimer
    of warranty and GPL in the copies of program.

    4. The requirement to notify people of any changes
    you made to the program.

    5. The requirement to license your work, that contains
    any portion of program, under the same terms of GPL.

    6. The requirement to make your source code available
    to others.

    7. The requirement to provide royalty-free license of

    There may be other elements that I have not listed but
    the above should give you general idea of how many
    extra elements there are in GPL.

    None of these elements are covered by the U.S. copyright
    law. You can’t enforce these elements through the copyright
    law. So, how can you enforce these elements? Through
    state and common laws including contract law.

    There are four different situations that can happen.

    1. No violation of copyright law and license.

    There is nothing to be said here. It has no consequence.

    2. Violation of copyright law but not violation of license.

    In this second situation, this means that a person has not
    seen the license or does not agree to license. If he
    copies someone else’s program and distributes without the
    permission from the author of the program, the author
    can sue him only under the copyright law. The license
    has no affect in this situation. This is simple and
    everyone is familiar with this.

    3. Violation of copyright law and violation of license.

    This third situation is familiar to everyone as well.
    If a person breaches any condition in license, he
    loses the permission to copy and distribute program.
    And because he already copies and distributes program,
    he infringes the author’s copyright.

    4. Violation of license but not violation of copyright

    This fourth situation is not well known to the lay
    people. Here is an example of the situation: I
    copy 1% of GPL-covered software. That 1% is allowed
    by the Fair Use Doctrine or Merger Doctrine. Therefore,
    there is no copyright infringement. I include that
    1% in my own program and distribute only executable
    code to the public without making the source code
    available. There is no problem with that, in
    spite of what Section 5 in GPL says. Section 5 in
    GPL is not entirely accurate. The lay people who
    are not familiar with the copyright law are easily
    misled by Section 5 in believing that there is no
    way to copy, modify, or distribute any portion of
    program outside of GPL.

    However, if I agree to GPL at first place, I will
    breach the conditions in GPL if I do the above.
    In this case, the licensor has to use state and
    common laws to sue me for breaching the conditions.
    Nothing in the copyright law gives the licensor
    the privilege to sue me precisely because the
    code that I copied and distributed without making
    the source code available is not copyright

    This fourth situation shows the true nature of
    license – that it is or acts like a contract.

    Next, I will argue against your assertion that I am
    misrepresenting Richard Stallman’s position. I have no
    problem with his own philosophy but I have problem with his
    presentation of his philosophy. He is like a marketer that
    uses the dynamic, energy-filled, exciting, noble name of
    “freedom” and “free” to mislead people in believing that
    the GPL-software is truly free (in respect to freedom, not
    price). Imagine the lack of luster if he does not use
    “free” or “freedom”. Let’s see if GPL-covered software is
    truly free as compared with the public domain software. The
    obvious difference between two software is the conditions.
    GPL imposes conditions on the people who agree to GPL. Public
    domain on the other hand imposes no conditions on the users.
    Freedom, by several definitions, means absence of restriction
    or control.

    I have no problem with people choosing to use GPL but tell
    GPL as it is, not as it pretends to be. GPL is not about free
    (in respect to freedom, not price). GPL is about control over
    the allocation of rights, privileges, and permissions and the
    behavior of people. GPL does not allow anyone who do not agree
    to its conditions to enter the gate to the library of
    GPL-covered software. It is like the old days when libraries
    were private. The patrons were given special privileges to
    access the private libraries. Those people who do not have
    special privileges are denied the access to the same libraries.
    The public domain is much like the modern public libraries
    where no one needs special privilege to access them.

    If you can show me where Richard Stallman actually supports
    public domain for some software, I will stand corrected.

    Joseph Pietro Riolo
    <[email protected]>

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  57. Peter Rock says:

    3 VERY Blind Mice said -“long haired hippie people need not apply.

    As I’ve said – those who make “hair” comments are obviously not interested in a serious discussion. They are blinded by the rhetoric of IP and wish to label those interested in making this world a better place as “communists” or “hippies” or some other meaningless name. Most likely they are people in the IP industry who see copyright, trademark, and patents as a means to their own selfish end. They want to package all of these up and place them under the IP umbrella – making this a 2-sided debate. A trick that politicians often use to sway the masses with reagards to various social issues. Sorry to disappoint, but I’m doubting that Lessig’s blog is where you will find an ignorant mass to follow your rhetoric.

    Complete anonymity is another clue that one is not interested in finding out what is true. I do believe they call the likes of you on – “Anonymous Cowards”.

  58. Professor’s Lessig’s announcement should be accompanied by a statement affirming (“reaffirming”?) that law schools should abjure the relative standing of law journals as one measure of the quality of the publications and performance of the faculty members of those law schools. And someday perhaps the law school as we know it will cease to exist; perhaps the standing of virtual legal scholarly communities will surpass the standing of the academic legal communities that are housed in specific geographical venues and that restrict full membership to a privileged and compensated few — principally tenured faculty members. A legal scholar should be judged and rewarded solely on the basis of the quality of his or her thoughts and arguments.

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