Mark Helprin Stole From Techdirt Commenters (Using The Logic Of Mark Helprin)

from the where-should-he-send-the-check? dept

Last week, I wrote about Mark Helprin's error-filled Wall Street Journal op-ed that was really just an attempt to generate attention for his new book -- attacking everyone who criticized his 2007 NY Times editorial. I, of course, am one of those who challenged Helprin's reasoning at the time. Of course, as much as I write about this stuff, I'm no Larry Lessig or James Boyle, and I certainly never expected that Helprin would even bother to read what I wrote. And, as I've been reading his dreadfully written book, I didn't notice anything to indicate that Helprin was directly addressing any of the points I raised.

However, I was just reading Larry Lessig's long and thorough takedown of Helprin's book, and noticed something odd. Early on, Lessig states:

The product of this feeding, Helprin suggests, is just so much trash. The work of the Internet is an intellectual waste. No serious reader, or especially writer, should pay any attention to this waste.

But then here's the astonishing fact about Digital Barbarism: Though the Internet is a waste, though blogs are "subliterate" and wiki's are written "the way Popeye speaks," Helprin draws exclusively upon the Internet to form the knowledge he needs to launch his attack. He cites no book, or scholarly article, that might help explain the copyright puzzle that started him on his odyssey. Literally everything he points to to explain the weirdness that is copyright is either a blog, or a wiki, or an essay in an Internet publication.

Now I like the Internet as much as the next guy, and I guess I had never really had to think about the question before. But Helprin has convinced me that you can't understand the subject of copyright law by simply reading blog posts. To get it, or at least to get it well enough to write a frakking book about it, you're going to need to read something other than techdirt.com.

Emphasis mine -- obviously. Now, while this might seem like a bit of a slap at Techdirt, I actually agree -- wholeheartedly. I certainly hope that no one gets their copyright education solely from any blog, whether it's written by me or by William Patry. However, it struck me as odd that Lessig specifically called out Techdirt, seeing as I hadn't even noticed us being mentioned at all in the 1/2 (or so) of the book that I've gotten through (and I've never spoken to Lessig, nor seen him mention Techdirt in the past). So, I pulled out my copy of the book, and went to look at the endnotes for the first time... and realized that a rather large number of the quotes that Helprin spends his time deriding are pulled from Techdirt. But not from what I wrote... but from the comments (which he refers to, oddly, as "sections").

Now, I'll be the first to admit that we have all types of folks who show up in the comments -- from incredibly intelligent knowledgeable experts in the field of copyright law to interested amateurs to the totally clueless to trolls. To pick and choose a few crazy comments, and position them as if they're representative of the common views of folks questioning Helprin's logic, is incredible. I could equally pick out some of the more ridiculous pro-infinite copyright comments on Techdirt, and make the same nutty claims about those who support stronger copyright laws. Just yesterday, someone wrote in our comments:

There is never a proper debate for copyright theft. If you create it, then you own it. Many countries have unlimited copyright. Maybe that's what North America should consider. If it is created by your intellect then it is yours. You may pass it along as you wish, but it is yours forever.

Now, this is all sorts of wrong, but I assume this is one incredibly misinformed individual, rather than a representative of, say, the RIAA. However, Helprin has no such qualms. He takes random comments from up and down that Techdirt post, and assumes they represent the secret agenda of groups like Creative Commons (who he refers to as an "informal" group building software to abolish copyright -- again, all sorts of wrong).

Even more amusing? With at least a couple of the comments that Helprin quotes, he's clearly taking them totally out of context. For example, there is one point in the book where Helprin goes against people who pointed out that he had written a book called Winter's Tale, and assumed (incorrectly) that it was based on Shakespeare's The Winter's Tale. In it he quotes a commenter on Techdirt ("section 20") who wrote: "So then Halpron's the guy who did the "West Side Story" job for Shakespeare's The Winter's Tale?" and uses that as evidence of us morons critiquing him. Except, he left out the rest of that comment, which made it clear that the whole thing was a joke: "Was it any good? Have they made a movie out of it yet, or was it only on Broadway?"

And, of course, even for the people who legitimately thought that Winter's Tale was based on Shakespeare, that mistake is certainly no more egregious than the many, many, many mistakes that Lessig lays out in his review of Helprin's work -- specifically taking him to task for clearly not having bothered to read a single scholarly piece on copyright, but relying entirely on hand-chosen silly comments on Techdirt.

Among the errors are things like, "It would be one thing if such a revolution produced Mozarts, Einsteins, or Raphaels, but it doesn't," to which Lessig notes: "Helprin apparently didn't notice that none of those creators enjoyed anything like the "copyright" of today. One might as well say the world of non-copyright gave us Mozart, Bach and Beethoven, while the world of copyright gave us Britney Spears. That too would be a bad argument, but just [the] sort of argument that is at home in this book." It's actually even worse than that. Some of Mozart's greatest works were derivative works that likely would be considered infringing today. Helprin also seems to not know what was in the last copyright extension act, known as the Sonny Bono Copyright Extension:

Helprin writes: "Previously, a copyright assigned to a publisher or a studio would remain there for all the days of its life. Now, and thanks to Sonny Bono, if it is not a work for hire (which nothing should or need be), a licensee can keep it for only thirty-five years, after which the rights return to the author, the composer, the artist, or the heir." (127). Wrong. The Sonny Bono Act didn't create the termination right. It merely extended it.

Yet, Helprin believes that a random small error (which was actually part of a joke by an Anonymous Coward on Techdirt) gives him proof that all copyright critics are clueless? Even if you consider the "errors" of equal magnitude, we're talking about an anonymous quick jokey comment vs. a "professional" book by one of the nation's top authors, from a top publishing house with (one assumes) an editor.

Still, the most amusing part of all, was Helprin's attempt to defend copyright infringement as being the same as theft -- an old argument, and one that's been dismantled many times (including, of course, by the Supreme Court, who famously stated: "interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use"). However, Helprin doesn't even bother to look at the intellectual arguments around this issue, preferring to use an emotional tale from his youth about "stealing" an ear of corn in the field, arguing with a farmer about it, and then realizing the incredible importance of never "stealing" anything.

Yet, as Lessig points out:

So should Helprin have been ashamed that he stole the farmer's food. Of course he should be! What kind of confused mind would think it right to take another person's property? There are a million reasons Helprin's juvenile behavior was wrong, not the least that it would deprive the farmer of a chance to profit from the food he was growing. Helprin's taking that ear of corn meant that the farmer couldn't sell it. It is inconceivable that this should even have been a question for him.

But what's less clear is what Helprin thinks follows from this moral tale. Does he think that it shows that one can't "take" another person's words? That when, for example, I quote a sentence from Helprin's book in this review, I am doing the same thing he was doing when he stole some corn?

Of course, as Lessig then notes, the quoting is fair use -- but according to Helprin's own corn-story description of the importance of never stealing even an ear of corn, any "taking" of one's words would also be stealing. So, by that reasoning, considering how he quoted (by my count) 12 separate comments from the Techdirt story, one can conclude that Helprin clearly believes he has stolen from the commenters here twelve times. If he's willing to send us our royalty check, I'll make sure the money is distributed to our commenters. Mark, we're waiting! In the meantime, I can't wait to see what comments you guys make on this post. Be sure to provide only the best quality stuff, since it may be the raw material for Mark Helprin's next book!

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Not Smart: Warner Music Issues DMCA Takedown On Larry Lessig Presentation

from the this-is-going-to-hurt dept

If there were anyone out there to whom you would not want to send a random takedown notice for an online video, it would probably be Larry Lessig. Given that Lessig has become the public face for those who feel that copyright has been stretched too far, as well as being a founder of Stanford's Fair Use Project, and who's written multiple books on these issues, you would think (just maybe) that any copyright holder would at least think twice before sending a DMCA takedown on a Larry Lessig presentation.

Apparently, you'd be wrong.

Lessig has announced that Warner Music issued a DMCA takedown on one of Lessig's own presentations, in which his use is almost certainly fair use. Lessig, of course, is a lawyer, and a big supporter of fair use, so it's no surprise that he's also said he's going to be fighting this.

The thing that I can't understand is who at Warner Music would decide this was a good idea? We've seen Warner make a number of highly questionable moves over the past six months, but this may be the most incomprehensible. Warner Music may claim it was an accident or that it didn't mean to send the takedown, but that's hard to fathom as well. The DMCA rules are pretty clear, that the filer needs to clearly own the content, and previously lawsuits have said they need to take fair use into account. I'm guessing we haven't heard the end of this yet...

Update: Some people have been asking which Lessig presentation was taken down. It's been reposted elsewhere, so you can check it out, and then explain how Warner Music has any claim to a takedown.

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Court Rules Part Of Copyright Act Unconstitutional

from the wow dept

A year and a half ago, we were quite surprised when the 10th Circuit Court of Appeals actually sided with Larry Lessig, concerning how a part of copyright law that pulled foreign works out of the public domain was potentially unconstitutional. This was in the "Golan case," the third of three big copyright cases Lessig had championed. The appeals court had sent the case back to the lower court, and that lower court has now decided that, indeed, a trade agreement (URAA) that pulled foreign content out of the public domain is unconstitutional as it violates the First Amendment. While it may seem narrowly focused, this is the first case that has successfully challenged a part of copyright law as being unconstitutional. The ruling will almost certainly be appealed, so it's not over yet -- but it's still a rare and important win for those who are fighting to keep copyright law from destroying the public domain.

The specifics may seem a bit down in the legal weeds, but they're quite important. In the famous Eldred case, which challenged the constitutionality of continual copyright extension, the Supreme Court held that this was within Congress' purview, so long as it didn't muck with "the traditional contours of copyright law." The two later cases that Lessig was involved in both focused on this claim, trying to note that changes in the law did not, in fact, stick with the traditional contours of copyright law, and in removing content from the public domain actually violated First Amendment rights. In this case, the plaintiffs had relied on previously public domain works, that were suddenly pulled back under copyright by this treaty. They argued that taking content back out of the public domain went against the traditional contours of copyright law. While the lower court initially disagreed, the appeals court reversed the decision, and sent it back to the lower court -- noting that since the traditional contours of copyright law had been changed, the new law had to be reviewed as to whether or not it violated the First Amendment.

This latest ruling said that, yes, it appears that it did in fact violate the First Amendment -- pointing out that while Congress did need to comply with international treaties, it did not have to do so in the way it did here (i.e., it could have created an exception for those who were already making use of these works in the public domain):

Congress has a legitimate interest in complying with the terms of the Berne Convention. The Berne Convention, however, affords each member nation discretion to restore the copyrights of foreign authors in a manner consistent with that member nation's own body of copyright law. In the United States, that body of law includes the bedrock principle that works in the public domain remain in the public domain. Removing works from the public domain violated Plaintiffs' vested First Amendment interests. In light of the discretion afforded it by the Berne Convention, Congress could have complied with the Convention without interfering with Plaintiffs' protected speech. Accordingly--to the extent Section 514 suppresses the right of reliance parties to use works they exploited while the works were in the public domain--Section 514 is substantially broader than necessary to achieve the Government's interest.

So, yes, this is a narrowly focused issue (and likely to be appealed right back up), but just the fact that a court has finally realized that copyright law can violate the First Amendment is a big win. Where this could get more interesting is if it eventually gets appealed up to the Supreme Court, and the court recognizes (as it hopefully will) that there's a discrepancy between this ruling and the ruling in another of Lessig's cases, Kahle v. Gonzales (which happened in the 9th circuit), and decides to look into whether or not certain changes in copyright law really did change the traditional contours of copyright law.

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ASCAP Continues Its Attack On Lessig; Free Culture

from the but-why? dept

We were already quite surprised when ASCAP set up a private lunch to come up with ways to "counter" the viewpoints of folks like Larry Lessig and various "free culture" supporters. After all, songwriters who have been embracing those concepts are making more money because of it. The problem, of course, is that those means often don't send that money through ASCAP. Still, as an organization that claims it represents the interests of songwriters, you would think they'd be thrilled to have songwriters make more money. Instead, it appears they would like to have songwriters make less money, and to attack Larry Lessig in the process.

Their latest move was to send out an email to members with links to various articles and commentaries that try to undermine Lessig's ideas. It's basically ASCAP propaganda. I guess they're afraid that songwriters might discover that they don't actually have to be beholden to ASCAP to make money.

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The Myth Of The Original Content Creator

from the what's-original? dept

A few people have directed my attention to copyright lawyer Mark Fischer's review of Larry Lessig's most recent book, Remix. The review is worth reading -- and there are some points on which I agree with Fischer -- particularly with the near impossibility of separating commercial use from non-commercial use. While Fischer seems sympathetic to the idea that there are some problems with copyright law, he keeps going back to one central idea that is the core of his problem with Lessig's book: that allowing others to remix content without getting permission potentially harms the "original creator."

This is a myth that is all too often found in IP law -- both in patents and in copyrights. This concept of the "original creator" of a piece of work. All works are built on those that came before. All works are inspired by and use bits and pieces of what they've learned or what they've seen, heard and felt. Pretending that there is a true original creator who deserves credit, money or control is a problem -- because it means no new creative works could be done without getting permission. That would be a tremendous hindrance on creation -- rather than progress (as the Constitution intends).

But because of this false belief in an original creator, Fischer creates some tradeoffs that don't really occur. Specifically, he notes:

If we move toward making content free for copying, distribution and remixing, the professional creators and their distributors will have an even tougher future. Erosion of the copyright system comes at a price. If we have to choose between encouraging original creativity and remixing, why not err on the side of encouraging the originators?

There are multiple problems with this statement. It makes the assumption that allowing free copying of your works makes it harder to earn money. Yet, that's not what we're seeing at all. Those who put in place smart business models have found that it's even easier to make make a lot more money than in the previous method. Erosion of the copyright system does not come at a price. It merely changes the business model around, and opens up tremendous new opportunities. And that's for everyone because it makes the process of building on the works of others easier -- and since all creativity really does come from building on the works of others, then creativity has the ability to flourish.

So, let's get rid of this myth that there's some "original content creator" and that said "original content creator" needs to be "protected." Neither point is true. Every content creator is building on the works of others, and there are plenty of business models that can be put in place easily that don't require "protection" at all. It may be more difficult for someone who makes their living helping enforce those protections to see it, but we're seeing it every day. Why block off all those innovative new content creators just because of a couple of myths?

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Is Someone Playing A Joke? Why Would Penguin Force Colbert To Take Down Lessig's Remix?

from the something's-not-right dept

Last night, Larry Lessig went on The Colbert Report to talk up his latest book Remix. While I think Remix is an important book and Lessig is a brilliant commentator on these issues, I was a little disappointed by the performance, but I'm willing to chalk it up to the fact that appearing opposite Colbert is incredibly difficult (almost impossible), and Colbert is the best at throwing interviewees off their game.

Of course, pretty much everything Colbert does is satire, and included in the video was the joking suggestion that no one take the video and remix it. Colbert, of course, has been one of the champions of getting folks to remix videos for him. So, obviously, the idea was to get more folks to remix.

However, just a little while ago, some folks started noticing a message at the top of Colbertnation.com saying:

Lawrence Lessig's REMIX has been removed at the request of Penguin Publishers.

At this point, it's unclear what exactly has been removed. The video of the interview is still online, so that's not what's been removed. Some are wondering if Colbert originally posted a downloadable copy of the book itself that has been removed. Many folks have noticed that Remix is not available for download, despite promises that it would be. Apparently, the free version of the book has been delayed until May, which is pretty lame, itself. And, then, of course, there's the possibility that the "removal" notice itself is just a Colbert joke -- though, it almost seems too subtle for Colbert's style of humor. If anyone has more info on what happened here, it would be great to know. Update: Adam Green, who works with Lessig and was at the taping stopped by to say, indeed, that it was a joke. If so, it's a bit odd, since they never even bothered to make clear what it was that was taken down.

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Lessig: Ditch The FCC, Replace It With Innovation Agency

from the stuff-to-think-about... dept

Larry Lessig has a piece in Newsweek suggesting that the new administration abolish the FCC and replace it with something he calls the Innovation Environment Protection Agency (iEPA) -- whose purpose is less about control, and more about getting government out of the way when not necessary. The purpose of such an agency would be: "minimal intervention to maximize innovation," with a core focus on keeping the government away from handing out favors and, more importantly, carefully reviewing any government monopolies to see if they cause net benefit or net harm. He starts off by talking about monopolies on things like spectrum, but says the agency can and should expand to cover monopolies such as copyright and patents.

There's a lot to like in the proposal, in theory. One of my big problems with pretty much any government program is how little effort there is to actually look at the basic question of: is this doing what it's supposed to do? And, if not, how do we change that? The GAO does a little bit in this area, but seems mostly powerless to actually effect change. Can you imagine if there were anyone in the government who was actually looking at some of the studies showing how much harm certain government-backed monopolies do to the economy -- and had the power to do something about it? However, it seems quite likely that, in practice, the iEPA would simply get co-opted by industry types, just as the FCC has, and the end result would be pretty ineffectual, if not downright backwards looking. A government agency designed to get the government out of the way? Not sure it's really possible...

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All-Star Witness List In Lawsuit Over Constitutionality Of RIAA Lawsuits

from the that's-quite-a-witness-list dept

Last month we had mentioned how Harvard Law professor Charles Nesson was taking on the RIAA's strategy of suing music uploaders by claiming that the laws the RIAA was relying on were unconstitutional. That case ("the Tenenbaum case") started moving forward this week, and the Associated Press had a story at the beginning of the week, which about fifty people submitted (with some angrily wondering why we hadn't written about it). We didn't write about it because it was basically the same story we had covered in October.

However, there is some interesting news in the case, as Ray Beckerman has posted the proposed witness list put forth by Tenenbaum's legal team and it is quite the star-studded list. It's becoming quite clear (if it wasn't already) that this is a case where a bunch of different folks in the "copyfighting" realm are converging to confront the RIAA's legal strategy. The list includes:

• John Perry Barlow (former songwriter for The Grateful Dead, founder of the EFF, and well known digital thinker)
• Prof. Johan Pouwelse (technical and scientific director of European research project P2P-Next)
• Prof. Lawrence Lessig (needs no introduction, I imagine, for folks around here)
• Matthew Oppenheim (who has a somewhat murky relationship with the RIAA, at times representing the RIAA, and at other times insisting he does not represent the RIAA)
• Prof. Terry Fisher (a director of Harvard's Berkman Center and author of Promises to Keep, an early book looking at how the internet was changing the entertainment industry, and how it's business models need to change)
• Prof. Wendy Seltzer (well known copyfighter, law professor, former staff attorney at the EFF and founder of the Chilling Effects site)
• Prof. John Palfrey (Harvard law professor, co-director of the Berkman Center, author of Born Digital)
• Prof. Jonathan Zittrain (Harvard and Oxford law professor, co-director of the Berkman Center, author of The Future of the Internet)
• Andrew Grant (former antipiracy specialist at DRM company Macrovision)

That is quite the all-star list. This case is going to be a fun one to watch.

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A Remix Weekend: Book And Movie About Remix Culture Released

from the have-fun dept

We just covered Larry Lessig's recent opinion piece about how to save remix culture (which, tragically, was entitled "a defense of piracy" -- which it's not). However, that was just a teaser from his new book, REMIX, which has now been released. And, of course, true to form, Lessig will soon release a copy of the book online for remixing purposes. And, as Mathew Ingram tells us, today an "open source documentary about copyright and culture" called RiP: A Remix Manifesto is premiering as well. That movie was made, in part, with the help of many people working on making it better. Here's the trailer:

The movie apparently focuses on Gregg Gillis, better known as Girl Talk, the remix artist we've discussed in the past plenty of times. It certainly looks like the book and the documentary will go together well (Lessig appears in the film), and hopefully will get people realizing that creativity has always involved standing on the shoulders of giants, and being able to improve on the works of those who came before you -- and with draconian copyright laws, we're often stamping out that possibility.

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Larry Lessig On How To Save Remix Culture

from the good-luck-with-that dept

Larry Lessig has a fantastic op-ed essay in the Wall Street Journal that tries to defend "remix culture" from draconian copyright laws that have made it illegal to build new creative works on the works of others. Not surprisingly, he makes some important points:

This war must end. It is time we recognize that we can't kill this creativity. We can only criminalize it. We can't stop our kids from using these tools to create, or make them passive. We can only drive it underground, or make them "pirates." And the question we as a society must focus on is whether this is any good. Our kids live in an age of prohibition, where more and more of what seems to them to be ordinary behavior is against the law. They recognize it as against the law. They see themselves as "criminals." They begin to get used to the idea.

That recognition is corrosive. It is corrupting of the very idea of the rule of law. And when we reckon the cost of this corruption, any losses of the content industry pale in comparison.

Copyright law must be changed.

It's definitely worth reading, and then considering the five suggestions he puts forth for how copyright can be fixed, though I disagree with him on whether or not his suggestions would actually work. I think they would significantly improve things from the way they are today, but Lessig still seems to think that there's a way to "thread the needle" by distinguishing between commercial works and non-commercial works. The more I look, the less possible I think it is to distinguish between the two in any meaningful way.

Furthermore, Lessig's solutions are focused very much on trying to "balance" the rights of amateur creative types with professional creative types. However, I think if you look at the economics and historical record, there's no need to create "balance." If content creators started adapting new business models, both can succeed tremendously, without having to worry about any kind of balance. A true solution suits both sides perfectly, benefiting both, without either side having to "balance" with the other.

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The Smear Campaign Against Larry Lessig And Free Culture

from the getting-nasty dept

You may recall that I've had my run-ins in the past with the incredibly misnamed Progress & Freedom Foundation. While I tend to think that Adam Theirer does okay work for them, almost every other report that comes out of the "think tank" seems highly questionable. We haven't heard much from them lately on intellectual property rights -- perhaps since two of their most outspoken folks on that topic (Patrick Ross and James DeLong) moved on. However, it looks like they've found someone new to drum up ridiculous arguments on intellectual property issues. If you don't recall, PFF is the group that has claimed that fair use harms innovation, that net neutrality is theft, and that open spectrum harms innovation (obviously WiFi was a huge problem). The most amazing thing to me, though, is that the PFF positions itself as a "libertarian" "free markets" think tank that thinks there should be less government regulation. But... anything having to do with intellectual property or spectrum, and suddenly all those libertarian statements go out the window.

Given all of that history, it's still rather amazing to read its newly released report on how the "Free Culture" movement, as explained by Larry Lessig, is really a "quasi-socialist" movement. Reading the full paper, you get a sense of how Washington DC works. It's a pure smear job that takes Lessig quotes out of context for ultimate impact and fills the rest with ad hominem and totally unsupported attacks. I certainly don't agree with everything that Lessig has to say -- and I particularly disagree with some of his policy recommendations. But there's simply no way to read Lessig's work and come to the conclusions in this paper if you are being intellectually honest. You can disagree with his conclusions. You can disagree with his reasoning -- but to paint what he has to say as a celebration of communism or socialism is simply a smear tactic and a political hack attack.

What becomes clear as you read the attack is that the author, Tom Sydnor, simply read through Lessig's works in search of sentences that could be taken out of context in order to paint Lessig as a secret socialist/communist. It's hard to see how that's "scholarship." It's not worth refuting each and every statement here, but we'll give a few simple examples. First, Sydnor claims that Lessig "demonizes" property owners. Actually, Sydnor claims that Lessig "literally demonizes property owners." Unless Lessig is turning property owners into demons, then I'd have to say that Sydnor doesn't understand what "literally" means. But, more to the point, this is a rhetorical trick by Sydnor, which is the basis of nearly his entire paper, where he repeatedly assumes that intellectual property is no different than tangible property. This is a fabrication. There is no reason to ignore the very real differences between the two unless you're trying to unfairly and dishonestly paint someone as supporting something they have not.

While making fun of Lessig (Sydnor snidely accuses Lessig of "name calling" before referring to Lessig as a "hypocritical demagogue" -- kettle, pot, etc.), Sydnor points out that Lessig "analogizes property rights to the pesticide DDT." If you're playing along in the home game, Sydnor is pulling this from page 129 in Lessig's book Free Culture. Lessig's actual point, which is quite valid and interesting is that DDT was originally designed to serve a good purpose, but it was only later that it was realized that it had negative unintended consequences. This isn't "demonizing property rights" as Sydnor implies. It's merely pointing out that even those with the best of intentions (the makers of DDT or the creators of copyright law) may not realize the negative consequences of their actions, and how those negative consequences may outweigh the positive consequences.

"No one set out to destroy the environment. Paul Muller certainly did not aim to harm any birds. But the effort to solve one set of problems produced another set which, in the view of some, was far worse than the problems that were originally attacked. Or more accurately, the problems DDT caused were worse than the problems it solved, at least when considering the other, more environmentally friendly ways to solve the problems that DDT was meant to solve."

If someone can explain how that's somehow demonizing property rights, I've got a job for you as a paid shill in DC. Instead, it's making a valid point that isn't demonizing anything -- most certainly not property rights. You can go through the rest of Sydnor's piece, and each and every time you'll notice he does one of two things: he conflates copyright with tangible property or he takes statements out of context to prove his point. He's also not beyond ridiculous hyperbole. In pointing to a rather reasonable quote from Lessig about why we should be interested in seeing if other systems can provide better outcomes, Sydnor brushes off all other systems of copyright by claiming:

"But during the last century, humanity conducted many vast experimental investigations of the relative merits of these "different property systems and the freedoms each allowed." Those experiments were run by well-intended people who sincerely believed that replacing systems of private property with "different systems" would improve the material and spiritual well-being of humanity. During those experiments, millions were murdered and billions were impoverished and enslaved.

Hyperbole much, Tom? Sydnor, once again, is equating copyright to tangible property (missing the irony that copyright -- a government granted monopoly -- seems a lot more closely aligned with the centralized governments of the former socialist nations than a system that relies on the free market). He then cuts off any questions about looking for a more reasonable system than copyright (which is a monopoly right, not a property right) by suggesting that any other system leads to "millions murdered" and "billions impoverished and enslaved." It's quite a leap. If there was any left, this paper destroys any credibility on pretty much anything coming out of PFF these days. It's the worst kind of political smear tactic.

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Changing The Internet's Architecture Isn't So Easy

from the network-neutrality dept

Last week, Larry Lessig gave a talk at an FCC event at Stanford that makes a good jumping-off point for my ongoing series on network neutrality. In my previous installment, I made the point that both sides of the network neutrality debate have a tendency to over-estimate the ability of network owners to exert control over how their networks are used. Lessig certainly makes this assumption. He claims that "owners have the power to change [the Internet's architecture], using it as a tool, not to facilitate competition but to weaken competition." Do they? He doesn't spend any time explaining how networks would do this, or what kind of architectural changes he has in mind. But he does give an example that I think is quite illuminating, although not quite in the way he had in mind.

Lessig imagines a world of proprietary power outlets, in which the electricity grid determines the make and model of an appliance before deciding whether to supply it with power. So your power company might charge you one price for a Sony TV, another price for a Hitachi TV, and it might refuse to work at all with an RCA TV. Lessig is certainly right that that would be a bad way for the electricity grid to work, and it would certainly be a headache for everybody if things had been set up that way from the beginning. But the really interesting question is what a power company would have to do if it wanted to switch an existing electricity grid over to a discriminatory model. Because the AT&Ts and Comcasts of the world wouldn't be starting from scratch; they'd be changing an existing, open network.

Our hypothetical power company would need to develop some kind of handshaking protocol, so an appliance could prove to the grid that it was manufactured by "approved" manufacturers. This would require an elaborate and expensive transition process during which appliance makers re-designed their entire product lines to comply with the new standard. The handshaking protocol would have to be complicated enough that unapproved manufacturers couldn't fake it. And once the new appliances had hit the market, consumers would have to throw out all of their existing appliances and get new ones. It wouldn't be possible to allow old appliances to keep working, because in that case non-approved manufacturers could just camouflage their appliances to appear to the grid like "legacy" appliances. A transition to a proprietary electricity grid would, in short, be a multi-billion dollar effort that would require the close cooperation of the world's major appliance manufacturers, would take many years, and would probably still cause a ton of problems for customers when they discover they can no longer use older equipment.

Turning to the technology world, we don't actually have to speculate about what a high-tech architectural transition looks like. I've written before about the uphill struggle to get people to switch from IPv4 to IPv6. Nobody disputes that IPv6 has a lot of nice features that IPv4 doesn't. But the sheer amount of work needed to switch the world's networks over to the new architecture has so far proven an insurmountable barrier. The same was true of Intel's failed transition from x86 to Itanium; plenty of people liked the new architecture, they just weren't willing to spend the money required to re-develop all their software to run on it. Even successful platform transitions, such as Apple's shift from Mac OS 9 to Mac OS X, tend to be long, messy processes that require close cooperation between the platform owner and key developers.

A network owner wanting to change the Internet's architecture would have to go through a similar process, but it would have to do it largely without the help of application developers. There are thousands of applications and millions of websites that are built on open Internet standards. A change in the Internet's architecture would require changing those applications and websites to conform to the new requirements. This could easily involve billions of dollars of tedious work. And the companies that would have to do the bulk of the work—firms like Google, Microsoft, and Apple—would have no interest in participating in such a project. To the contrary, most of them are on record as supporters of network neutrality. It's just not conceivable that AT&T, Comcast, or another network owner could just flip a switch and "change the architecture" of the Internet. The Internet has become much larger than any one network owner.

There's certainly plenty to criticize when ISPs block specific protocols. We've certainly given Comcast a hard time for screwing around with BitTorrent. But it's totally misleading to look at such incidents as a change in the architecture of the Internet. Comcast's network still operates on the same open architecture it always had. New applications still work by default unless Comcast specifically configures its firewall to block them. The Internet's open architecture doesn't completely prevent Comcast from interfering with customers' traffic, but because the company doesn't control the software stack, it can't do much more than clumsily block protocols it doesn't like. And after a lot of bad publicity, customer anger, and legal pressure, Comcast appears to be backing away from that strategy too. It looks to me like Lessig is dramatically underestimating how hard it would be for even a major broadband provider to change its network's architecture in any significant way.

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Other posts in this series:

• Censoring The 'Net Is Hard
• Ownership Doesn't Always Mean Control
• Changing The Internet's Architecture Isn't So Easy
• Revolving Door Undermines FCC's Watchdog Role

Timothy Lee is an expert at the Insight Community. To get insight and analysis from Timothy Lee and other experts on challenges your company faces, click here.

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Lessig Decides Against Congressional Bid

from the House-is-not-a-home dept

Law professor and copyright critic Lawrence Lessig has decided against a run for Congress, citing polling showing "no possible way" of overtaking popular California State Senator Jackie Speier before the April 8 election to fill the seat left empty by the death of Democratic Rep. Tom Lantos. Lessig had been mulling a bid on the urging of a burgeoning netroots campaign to draft him for public office, but decided that the likelihood that he would "lose big" would do more to harm than help his broader nascent effort to "Change Congress."

That effort will now see a sudden cash influx, as almost $28,000 raised at the Lessig '08 page on the progressive Web site ActBlue flow into the newborn non-profit's coffers. Under an arrangement with ActBlue, some $8,600 raised on two other Lessig-related pages will be donated to Creative Commons, an organization founded by Lessig to provide simple legal licenses for creators who wish to enable the sharing and remixing of their works.

Julian Sanchez is an expert at the Insight Community. To get insight and analysis from Julian Sanchez and other experts on challenges your company faces, click here.

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Larry Lessig Officially Considers Run For Congress

from the vote-lessig dept

Earlier this week, there was plenty of buzz going around concerning an effort to draft Larry Lessig to run for Congress in the seat opened up by the unfortunate passing of Rep. Tom Lantos in the 12th Congressional district in California (most of San Mateo county). I pretty much brushed it aside as idle speculation, but Lessig has now admitted that he is seriously considering a run for Congress and has put up a website with a video concerning a potential run. I don't agree with Lessig on plenty of things -- and I'm not even sure he could win such a campaign -- but it's hard not to like the idea of Lessig in Congress. Considering how often we see politicians who grandstand and have little knowledge of key important issues, it would be quite a feat to get someone like Lessig into office. Recently, Lessig has been focusing on trying to deal with the problem of political corruption. Some might think it would be a much more difficult challenge from the inside than from the outside -- but it's rather appealing to think he might have the ability to shake things up inside. Of course, plenty of good people have gone to Washington DC with lofty intentions and come back beaten by the system, but it's hard not to think that Lessig has a chance to actually make a difference. Even if Lessig were to run and lose, just by running, he can help push his fight against the inherent corruption of our current political system into the public debate.

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Court Agrees That Pulling Content Out Of The Public Domain May Violate The First Amendment

from the a-win-for-lessig dept

This one comes as a bit of a surprise. The third in Larry Lessig's triumvirate of copyright cases may present his first serious court victory on these issues (and it potentially could come back to help the second case as well). A little history first. A few years back, Larry Lessig took a copyright case to the Supreme Court. The so-called Eldred case challenged recent changes to copyright law by Congress, stating that the repeated extensions to the length of copyright violated the Constitution, which guaranteed that copyright should only last a "limited" time. The Supreme Court disagreed with Lessig and Eldred, saying that Congress was within its Constitutional right in extending copyright. However, the case opened up some potential arguments to be discussed in later cases -- and Lessig has taken full advantage of that. The key point that the court made was that Congress' actions can be scrutinized under the First Amendment when it changes the "traditional contours of copyright protection." The court didn't think that simply extending copyright changed the contours of copyright protection -- but it did set some of the parameters for getting the courts to review changes to copyright law.

In fact, Lessig used that ruling in the next case, the Kahle case, arguing that the changes Congress made back in 1976, switching copyright from an "opt-in" system to an "opt-out" system clearly changed the traditional contours -- which seems like a reasonable argument. However, the 9th Circuit Court of Appeals unfortunately seemed to think that Lessig was simply re-arguing the Eldred case and couldn't tell the difference even though the Kahle case was about changes to the nature of copyright law, and the Eldred case was simply about extending copyrights. The Kahle case is being appealed to the Supreme Court. Of course, the Supreme Court tends to like to take cases where two lower courts have seemingly disagreed with each other -- and a new ruling in a different case involving Lessig may have just created that type of disagreement -- which could hopefully make the Supreme Court pay attention.

The third case, the Golan case, questions a separate change to copyright law, where a US trade agreement forced foreign works that had been in the public domain back under copyright. Once again, the argument was that, based on the Eldred ruling, this change altered the traditional contours of copyright protection -- and therefore should be reviewed under the First Amendment. To the surprise of many folks (me included), the 10th Circuit Court of Appeals has agreed and sent the case back to the district court to determine if this change really did violate the First Amendment (though, it should be noted that the court disagreed with Golan/Lessig on a variety of other points). Lessig is quite hopeful that the supposed disagreement between the 9th and 10th Circuit will cause the Supreme Court to take notice and review this area of copyright law. Lessig, obviously, is quite excited about this -- though, if you want a more tempered opinion, it's worth reading copyright expert William Patry's take on the decision, which he seems to find somewhat baffling for a variety of reasons, both in the court's reasoning and the reasoning behind Lessig's position. Either way, this is a big victory for Lessig, and while it may seem a fairly minor nitpick into the nature of copyright law, it could represent a tiny, but important, door-opening crack in preventing Congress from further eroding the rights of individuals when it comes to how they can use content.

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