The DRAFT LESSIG Challenge

The DRAFT LESSIG movement — to encourage Prof. Lawrence Lessig to run for the U.S. Congress from California — is off to a quick start. Then again, if it’s going to happen, it has to happen fast: the special election is April 8. The Facebook group we set up a few days ago now has over 2,000 members. Supporters have come out of the netroots from every angle. There are fund-raisers pledged in 6 cities.

One of the common critiques of Net politics is that it’s meaningless just to “join a group” to support a candidate or a cause. I don’t buy it, especially since I think that joining a cause or writing about it often leads to further action.

In the case of the DRAFT LESSIG movement, we ought to prove that there’s something different going on here with politics and the net. In the process, we’ll make it clear to Prof. Lessig that we’ve got his back — that ordinary citizens will contribute the funds needed to run his campaign and that it can be run without support from special interests. Let’s get 1,000 people to donate to his campaign (or otherwise commit to volunteer if a campaign is organized) in the coming week. We’ve set up an ActBlue “draft” account, so you can give money now, to be turned over to the campaign if it materializes. If the campaign does not happen, the money is given in full to Creative Commons. You can’t lose. Please join me in donating now.

Five Years of Keeping Culture Free

Hip-hip-hooray for Creative Commons on its fifth birthday today! Thanks to Larry, Joichi, and all the heroes of a free culture who have worked so hard on CC, around the world, for the past half-decade. If you want to help, there’s still time to pitch in: CC is $470,000 of the way toward $500,000 in individual contributions. Click here to be part of that last $30,000.

Throwing Code Over the Wall to Non-Profits

Total blue sky, inspired in part by a wonderful gathering pulled together by Jake Shapiro at PRX and Vince Stehle at the Surdna Foundation, picking up on thoughts from various contexts:

If I could start (or otherwise will into existence) any non-profit right now, what it would do is to develop and apply code for non-profit organizations that are under-using new information technologies for core communications purposes. The organization would be comprised primarily of smart, committed, young coders and project managers, primarily, who know how to take open source and other web 2.0-type tools and apply them to connect to communities of interest. (Perhaps some coders would volunteer, too, on a moonlighting basis.)

There are a bunch of problems it would be designed to solve. There are lots of non-profit organizations, such as public media organizations or local initiative campaigns or NGOs in fields like human rights, for instance, that would like to leverage new technologies in the public interest — to reach new audiences for their work and to build communities around ideas — but have no clue as to how to go about doing it.

I think the stars are aligned for such a non-profit to make a big difference at this moment of wild technological innovation. There are lots of relevant pieces that are ready to be put together. Ning and many others have developed platforms that could be leveraged. SourceForge has endless tools for the taking and applying to solve problems. Blogs, wikis, social networks (think of the Facebook open API), and Second Life (or whatever you’d like to experiment with in the participatory media space) are also easy to put to work, if you know how. Most small organizations know that Digital Natives (and many others) are spending lots of their lives online. There are others who do things like this — consider the wonderful Tactical Tech in the global environment, as well as those who do development for political campaigns, like Blue State Digital — whose learning might be leveraged here. There is plenty of “pain in the marketplace,” as venture guys might say. There are smart coders coming out of schools who want to do well enough by doing good in a mission-driven organization (think of the geekiest members of the Free Culture movement). The goal would be to take these technologies and making them work for carefully targeted customers in the non-profit space.

The non-profit would require a reasonable pile of start-up capital to get set up and to have ballast for lean times, but it would have a revenue model. It would charge for its services, on an overall break-even basis. It would not develop things for free; it would develop things for cheap(er) and with real expertise for non-profits that need access to the technologies. (One could imagine a sliding scale based upon resources and revenue and so forth.) It would also have a training services arm. Clients would be required to pay for some training, too, so that the organization would have an internal capacity to keep up the tool that’s developed for them.

I could imagine it loosely based in a big, open, low-rent space in Central Square in Cambridge, right between MIT and Harvard, with collaborators around the world. I suspect there are others doing something like this, but I am constantly surprised by the number of times I am at meetings or conferences where prospective customers tell me they don’t have a provider for their needs.

Three Conversations on Intellectual Property: Fordham, University of St. Gallen, UOC (Catalunya)

Three recent conversations I’ve been part of offered a contrast in styles and views on intellectual property rights across the Atlantic. First, the Fordham International IP conference, which Prof. Hugh Hanson puts on each year (in New York, NY, USA); the terrific classes in Law and Economics of Intellectual Property that Prof. Urs Gasser teaches at our partner institution, the University of St. Gallen (in St. Gallen, Switzerland); and finally, today, the Third Congress on Internet, Law & Politics held by the Open University of Catalonia (in Barcelona, Spain), hosted by Raquel Xalabarder and her colleagues.

* * *

Fordham (1)

At Fordham, Jane Ginsburg of Columbia Law School moderated one of the panels. We were asked to talk about the future of copyright. One of the futures that she posited might come into being — and for which Fred von Lohmann and I were supposed to argue — was an increasingly consumer-oriented copyright regime, perhaps even one that is maximally consumer-focused.

- For starters, I am not sure that “consumer” maximalization is the way to think about it. The point is that it’s the group that used to be called the consumers who are now not just consumers but also creators. It’s the maximization of the rights of all creators, including re-creators, in addition to consumers (those who benefit, I suppose, from experiencing what is in the “public domain”). This case for a new, digitally-inspired balance has been made best by Prof. Lessig in Free Culture and by many others.

- What are the problems with what one might consider a maximalized consumer focus? The interesting and hardest part has to do with moral rights. Prof. Ginsburg is right: this is a very hard problem. I think that’s where the rub comes.

- The panel agreed on one thing: a fight over compulsory licensing is certainly coming. Most argued that the digital world, particularly a Web 2.0 digital world, will lead us toward some form of collective, non-exclusive licensing solution — if not a compulsory licensing scheme — will emerge over time.

- “Copyright will be a part of social policy. We will move away from seeing copyright as a form of property,” says Tilman Luder, head of copyright at the directorate general for internal markets at the competition division of the European Commission. At least, he says, that’s the trend in copyright policy in Europe.

* * *

Fordham (2)

I was also on the panel entitled “Unauthorized Use of Works on the Web: What Can be Done? What Should be Done?”

- The first point is that “unauthorized use of works” doesn’t seem quite the relevant frame. There are lots of unauthorized uses of works on the web that are perfectly lawful and present no issue at all: use of works not subject to copyright, re-use where an exception applies (fair use, implied license, the TEACH Act, e.g.s), and so forth. These uses are relevant to the discussion still, though: these are the types of uses that are

- In the narrower frame of unauthorized uses, I think there are a lot of things that can be done.

- The first and most important is to work toward a more accountable Internet. People who today are violating copyright and undermining the ability of creators to make a living off of their creative works need to change. Some of this might well be done in schools, through copyright-related education. The idea should be to put young people in the position of being a creator, so they can see the tensions involved: being the re-user of some works of others, and being the creator of new works, which others may in turn use.

- A second thing is continued work on licensing schemes. Creative Commons is extraordinary. We should invest more in it, build extensions to it, and support those who are extending it on a global level (including in Catalunya!).

- A third thing, along the lines of what Pat Aufderheide and Peter Jaszi are doing with filmmakers, is to establish best practices for industries that rely on ideas like fair use.

- A fourth thing is to consider giving more definition to the unarticulated rights — not the exclusive rights of authors that we well understand, but the rights of those who would re-use them, to exceptions and limitations.

- A fifth area, and likely the discussion that will dominate this panel, is to consider the role of intermediaries. This is a big issue, if not the key issue, in most issues that crop up across the Internet. Joel Reidenberg of Fordham Law School has written a great deal on this cluster of issues of control and liability and responsibility. The CDA Section 230 in the defamation context raises this issue as well. The question of course arose in the Napster, Aimster, and Grokster contexts. Don Verrilli and Alex Macgillivray argued this topic in the YouTube/Viacom context — the topic on which sparks most dramatically flew. They fought over whether Google was offering the “claim your content” technology to all comers or just to those with whom Google has deals (Verilli argued the latter, Macgillivray the former) and whether an intermediary could really know, in many instances, whether a work is subject to copyright without being told by the creators (Verilli said that wasn’t the issue in this case, Macgillivray says it’s exactly the issue, and you can’t tell in so many cases that DMCA 512 compliance should be the end of the story).

* * *

St. Gallen

Across the Atlantic, Prof. Dr. Urs Gasser and his teaching and research teams at the University of St. Gallen are having a parallel conversation. Urs is teaching a course on the Law and Economics of Intellectual Property to graduate students in law at St. Gallen. He kindly invited me to come teach with him and his colleague Prof. Dr. Bead Schmid last week.

- The copyright discussion took up many of the same topics that the Fordham panelists and audience members were struggling with. The classroom in Switzerland seemed to split between those who took a straight market-based view of the topics generally and those who came at it from a free culture perspective.

- I took away from this all-day class a sense that there’s quite a different set of experiences among Swiss graduate students , as compared to US graduate students, related to user-generated content and the creation of digital identity. The examples I used in a presentation of what Digital Natives mean for copyright looking ahead — Facebook, MySpace, LiveJournal, Flickr, YouTube, and so forth — didn’t particularly resonate. I should have expected this outcome, given the fact that these are not just US-based services, but also in English.

- The conversation focused instead on how to address the problem of copyright on the Internet looking forward. The group had read Benkler, Posner and Shavell in addition to a group of European writers on digital law and culture. One hard problem buried in the conversation: how much help can the traditional Law and Economics approach help in analyzing what to do with respect to copyright from a policy perspective? Generally, the group seeemed to believe that Law and Economics could help a great deal, on some levels, though 1) the different drivers that are pushing Internet-based creativity — other than straight economic gains — and 2) the extent to which peer-production prompts benefits in terms of innovation make it tricky to put together an Excel spreadsheet to analyze costs and benefits of a given regulation. I left that room thinking that a Word document might be more likely to work, with inputs from the spreadsheet.

* * *

Barcelona

The UOC is hosting its third Congres Internet i Politica: Noves Perspectives in Barcelona today. JZ is the keynoter, giving the latest version of The Future of the Internet — and How to Stop It. The speech just keeps getting better and better as the corresponding book nears publication. He’s worked in more from StopBadware and the OpenNet Initiative and a new slide on the pattern of Generativity near the end. If you haven’t heard the presentation in a while, you’ll be wowed anew when you do.

- Jordi Bosch, the Secretary-General of the Information Society of Catalonia, calls for respect for two systems: full copyright and open systems that build upon copyright.

- Prof. Lilian Edwards of the University of Southhampton spoke on the ISP liability panel, along with Raquel Xalabarder and Miquel Peguera. Prof. Edwards talked about an empirical research project on the formerly-called BT Cleanfeed project. BT implements the IWF’s list of sites to be blocked, in her words a blacklist without a set appeals process. According to Prof. Edwards’ slides, the UK government “have made it plain that if all UK ISPs do not adopt ‘Cleanfeed’ by end 2007 then legislation will mandate it.” (She cites to Hansard, June 2006 and Gower Report.) She points to the problem that there’s no debate about the widespread implementation of this blacklist and no particular accountability for what’s on this blacklist and how it is implemented.

- Prof. Edwards’ story has big implications for not just copyright, but also the StopBadware (regarding block lists and how to run a fair and transparent appeals process) and ONI (regarding Internet filtering and how it works) research projects we’re working on. Prof. Edwards’ conclusion, though, was upbeat: the ISPs she’s interviewed had a clear sense of corporate social responsibility, which might map to helping to keep the Internet broadly open.

For much better coverage than mine, including photographs, scoot over to ICTology.

Tom Rubin comes to the Berkman Center and Practical Lawyering class

The chief copyright, trademark and trade secret lawyer for Microsoft, Tom Rubin, has been a consistent contributor to our teaching program at the Berkman Center for the past three years. He’s been enormously generous with his time, meeting with Berkman-related students, faculty and fellows over several years. We’ve learned a great deal from Tom and his colleagues, like Ira Rubinstein and Jason Matusow and Annmarie Levins during their respective visits.

One of the topics for class today (Practical Lawyering in Cyberspace at HLS) is what it took for Tom and his colleagues to arrange for Creative Commons licenses to be built into the next release of Microsoft Office. Tom’s leadership was essential to making this integration possible. The importance of this move is that it enables people to apply Creative Commons licenses very simply to Word documents. As Lawrence Lessig put it at the time of the announcement earlier this year, “This is important to us because a huge amount of creative work is created inside the Office platform. Having a simple way to add Creative Commons licenses obviously helps us spread those licenses much more broadly.”

This class, which I’m co-teaching with my colleagues Jeffrey Cunard and Phil Malone, is a ton of fun to participate in — certainly as one of the teachers, anyway. The idea is to use real-world examples of cyberlaw matters as a means of teaching also the procedure, strategy, and tactics that go into the practice of law in this field. Jeff, who is a partner at Debevoise (and in fact the managing partner of their DC office), seems to have worked on every major matter in our field over the past two decades. Phil was one of the lead lawyers who brought the DOJ’s protracted action against Microsoft (and Tom still talks to Phil when they are at Berkman together!). We’ve also has Scott Harshbarger here in class last week to do the HP case and some of the spyware matters from the perspective of a government lawyer. It’s a highly applied means of teaching and not the usual HLS fare, which has good and challenging aspects to it. But fun, to be sure.

Sounds like fair use to me (and it should be, if it's not)

Ethan Zuckerman blogged Erin McKean’s talk at PopTech, reporting of the fear of some lexicographers that they will be sued for scanning some books to analyze language patterns. “This scanning shouldn’t be threatening to publishers. ‘I don’t care about your plot, or your ideas – I just want to analyze your use of the language.’ It should be considered fair use… ‘but this is America – anyone can sue anyone for anything.’ And just the threat of a lawsuit is enough to prevent lexicographers from analysing some texts.”

EZ goes on: “She begs us to make changes to the copyright pages of our books so that lexicographers have the explicit right to analyze them. (I’ll be putting the idea in front of Larry Lessig, to see if this can be yet another selling point for Creative Commons.)”

Making a Market Emerge out of Digital Copyright Uncertainty

The digital copyright issue is one of the sidebars related to the Google/YouTube transaction that has merited a fair amount of digital ink.

(For a few examples: don’t miss Fred von Lohmann as interviewed by John Battelle. Declan McCullagh and Anne Broache have an extensive piece highlighting the continuing uncertainty in the digital copyright space and quoting experts like Jessica Litman. Steve Ballmer brings it up in his BusinessWeek interview on the deal, asking, “And what about the rights holders?” And the enormously clever Daniel Hausermann has an amusing take on his new blog.)

My view (in large measure reflected in the WSJ here, in a discussion with Prof. Stan Liebowitz) is that Google is taking on some, but not all that much, copyright risk in its acquisition of YouTube. Google has already proven its mettle in terms of offering services that bring with them a reasonably high appetite for copyright risk: witness the lawsuits filed by the likes of the publishing industry at large; the pornographer Perfect 10; and Agence France Presse. There’s no doubt that Google will have to respond to challenges on both secondary copyright liability and direct copyright liability as a result of this acquisition. If they are diligent and follow the advice of their (truly) brilliant legal team, I think Google should be able to withstand these challenges as a matter of law.

The issue that pops back out the other side of this flurry of interest in the broader question of the continued uncertainty with respect to digital copyright. Despite what I happen to consider a reasonably good case in Google’s favor on these particular facts (so far as I know them), there is an extraordinary amount of uncertainty as a general matter on digital copyright issues in general. Mark Cuban’s couple of posts on this topic are particularly worth reading; there are dozens of others.

Many business models in the Web 2.0 industry in particular hinge on the outcome of this uncertainty. A VC has long written about “the rights issues” at the core of many businesses that are built, or will be built, on what may be the sand — or what may turn out to be a sound foundation — of “micro-chunked” content. Lawrence Lessig has written the most definitive work on this topic, especially in the form of his book, Free Culture. The RSS-and-copyright debate is one additional angle on this topic. Creative Commons licenses can help to clarify the rights associated with micro-chunked works embedded in, or syndicated via, RSS feeds.

Part of the answer could come from the courts and the legislatures of the world. But I’m not holding my breath. A large number of lawsuits in the music and movies context has left us clearer in terms of our understanding of the rules around file-sharing, but not enough clarity such that the next generation of issues (including those to which YouTube and other web 2.0 applications give rise) is well-sorted.

Another part of the answer to this digital copyright issue might be provided by the market. One might imagine a process by which citizens who create user-generated content (think of a single YouTube video file or a syndicated vlog series, a podcast audio file or series of podcasts, a single online essay or a syndicated blog, a photo covering the perfectly captures a breaking news story or a series of evocative images, and so forth) might consistently adopt a default license (one of the CC licenses, or an “interoperable” license that enables another form of commercial distribution; I am persuaded that as much interoperability of licenses as possible is essential here) for all content that they create, with the ability also to adopt a separate license for an individual work that they may create in the future.

In addition to choosing this license (or these licenses) for their work, these users registered this work or these works, with licenses attached, in a central repository. Those who wished to reproduce these works would be on notice to check this repository, ideally through a very simple interface (possibly “machine-readable” as well as “human-readable” and “lawyer-readable,” to use the CC language), to determine the terms on which the creator is willing to enable the work to be reproduced (though not affecting in any way the fair use, implied license, or other grounds via which the works might otherwise be reproduced).

Some benefits of such a system:

- It would not affect the existing rights of copyright holders (or the public, for that matter, on the other side of the copyright bargain), but rather ride on top of that system (which might have the ancillary benefit of eventually permitting a global market to emerge, if licenses can be transposed effectively);

- It would allow those who wish to clarify the terms on which they are willing to have their works reproduced to do so in a default manner (i.e., “unless I say otherwise, it’s BY-SA”) but also to carve out some specific works for separate treatment (i.e., “… but for this picture, I am retaining all rights”);

- It might provide a mechanism, supplemental to CC licenses, for handshakes to take place online without lawyers involved;

- It might be coupled with a marketplace for automated licensing — and possibly clearance services — from creators to those who wish to reproduce the works;

- It could be adopted on top of (and in a complementary manner with respect to) other systems, not just the copyright system at large as well as worthy services/aggregators of web 2.0 content, ranging from YouTube, software providers like SixApart, FeedBurner, Federated Media, Brad Feld’s posse of VCs, and so forth; and,

- It would represent a community-oriented creation of a market, which ultimately could support the development of a global market for both sharing and selling of user-generated content.

This system would not have much bearing on the Google/YouTube situation, but it might serve a key role in the development of web 2.0, or of user-generated content in general, and to help avoid a copyright trainwreck.

Gardner Museum's Podcast Series, The Concert

The Isabella Stewart Gardner Museum, one of Boston’s cultural gems, has released the first-of-its-kind museum concert series podcast, called The Concert. The good people there — including Catherine and Charlotte, who did a TV spot this morning — have decided to use a Creative Commons Share Music license. They’ve had the pro bono assistance of the Berkman clinical program in putting together this release. We’re proud to be associated with their innovative work to bring their music series to many more people than those who can attend in person at the appointed hour (though they highly encourage people to come to the Gardner to hear the concerts all the same!).

Bostonist and Cory at Boing Boing have more.