Saturday, March 14, 2015

Lawrence Lessig encouraging an Educational Commons

Lawrence Lessig (AKA Larry) is the author of “The Future of Ideas: the fate of the commons in a connected world;” it is one of several books he has written about copyrights and related subjects. He has written extensively about how copyrights are being misused to control information, music, movies etc., for the benefit of those that control it, mainly the Mass Media and other major corporations, at the expense of the vast majority of the public. This is supposed to provide incentives for those that create new books, art, educational material etc. Unfortunately it is no longer doing that instead it is being used to control our culture and educational material.
Lawrence Lessig has written about how most ideas in the past were built by building on the work of those that came before them; this is why copyrights are supposed to be for limited time and they’re supposed to allow fair use so that people can build on these ideas and come up with a steadily improving culture of music, literature, movies, art, and education. He has put his emphasis somewhat equally on the different uses for copyrights, which is fine; however I believe that the educational aspect should be the top priority as I have indicated on past blogs on this subject including Copyright violators are thought criminals and Copyright Bureaucracy.The reason for this is that in a sincere democracy the public needs a good education to understand how the system works and how to participate in it. Copyrights are making it harder for most people in the lower and middle class to get a quality education due to the added costs and the fact that by controlling the distribution of an enormous amount of educational material it makes it much more difficult to access it especially in the internet age when dramatic improvements in the education system are possible but they’re not being realized due to copyright laws.

The Mass Media is using lawsuits to infringe on the rights of many countries around the world to make their own laws about copyrights. In one case they sued people in Canada for doing things that are legal in Canada but not in the USA. The reason the laws are so extreme in the USA is because they have corrupted the political system here and now they trying to use their power to suppress rights abroad as well as at home. They have used the threat of law suits to prevent scrutiny of things that are being censored. They’re using copyrights to make it much harder to do research on how the Mass Media is becoming a much more effective propaganda machine. We now have the technology to enable many members of the public to review a large amount of news that dates back decades and check on how the media has been reporting on global affairs and how the government has been changing their story on a regular basis; however copyright laws prevent us from making the best of this.

The one thing that I disagree with Lawrence Lessig on is whether or not the system of copyrights is the best way to finance academic work and other educational material. As indicated in my previous blog about copyright bureaucracy I think we should find a better way to finance this work, presumably through grants or something similar. I previously indicated that I would be coming up with more ideas on this, and was looking for suggestion, which is still true. The advantage of this would be enormous; it would mean that new research would be available to everyone immediately not just the privileged and well educated that can afford it. In a sincere democracy rights and education shouldn’t be reserved for the upper class. I may not get to this for a few more weeks or even months but I will get back to it. I don’t consider music and movies quite as important since they are essentially luxuries and if they’re handled reasonably they aren’t urgent. We already have enough music literature and movies that could be available if the copyright length was reduced to a reasonable time. The owners of these copyrights should get no additional compensation for losing excessive copyrights that they never should have had in the first place. If these suggestions do work and they apply well to music and other entertainment as well I certainly wouldn’t object.

Lawrence Lessig has indicated that he believes that we should be able to exchange ideas more freely and build on them and he backed this up by making most of his materials available free to anyone who wants to use it for non commercial purposes as long as they cite the source. This enables people like me to cite extensive excerpts from his books, even though he doesn’t realize it. The following are excerpts from his book. If you think his work is worthwhile, you think it is worth providing some sales for someone who has made this available free, and you think it should be available to larger percentage of the public check your local library and consider donating a hard copy if they don’t have one. Thank You

Davis Guggenheim is a film director. He has produced a range of movies, some commercial, some not. His passion, like his father’s before, is documentaries, and his most recent, and perhaps best, film, The First Year, is about public school teachers in their first year of teaching—a Hoop Dreams for public education.

In the process of making a film, a director must “clear rights.” A film based on a copyrighted novel must get the permission of the copyright holder. A song in the opening credits requires the permission of the artist performing the song. These are ordinary and reasonable limits on the creative process, made necessary by a system of copyright law. Without such a system, we would not have anything close to the creativity that directors such as Guggenheim have produced.
But what about the stuff that appears in the film incidentally? Posters on a wall in a dorm room, a can of Coke held by the “cigarette smoking man,” an advertisement on a truck in the background? These too are creative works. Does a director need permission to have these in his or her film?
“Ten years ago,” Guggenheim explains, “if incidental artwork . . . was recognized by a common person,” then you would have to clear its copyright. Today, things are very different. Now “if any piece of artwork is recognizable by anybody . . . then you have to clear the rights of that and pay” to use the work. “[A]lmost every piece of artwork, any piece of furniture, or sculpture, has to be cleared before you can use it.”1

Okay, so picture just what this means: As Guggenheim describes it, “[B]efore you shoot, you have this set of people on the payroll who are submitting everything you’re using to the lawyers.” The lawyers check the list and then say what can be used and what cannot. “If you cannot find the original of a piece of artwork . . . you cannot use it.” Even if you can find it, often permission will be denied. The lawyers thus decide what’s allowed in the film. They decide what can be in the story.
The lawyers insist upon this control because the legal system has taught them how costly less control can be. The film Twelve Monkeys was stopped by a court twenty-eight days after its release because an artist claimed a chair in the movie resembled a sketch of a piece of furniture that he had designed. The movie Batman Forever was threatened because the Batmobile drove through an allegedly copyrighted courtyard and the original architect demanded money before the film could be released. In 1998, a judge stopped the release of The Devil’s Advocate for two days because a sculptor claimed his art was used in the background. 2 Such events teach the lawyers that they must control the filmmakers. 3 They convince studios that creative control is ultimately a legal matter.
This control creates burdens, and not just expense. “The cost for me,” Guggenheim says, “is creativity.... Suddenly the world that you’re trying to create is completely generic and void of the elements that you would normally create. . . . It’s my job to conceptualize and to create a world, and to bring people into the world that I see. That’s why they pay me as a director. And if I see this person having a certain lifestyle, having this certain art on the wall, and living a certain way, it is essential to . . . the vision I am trying to portray. Now I somehow have to justify using it. And that is wrong.”….. (p.3-4)
In 1984, the lab updated the software (a driver) that ran the printer. Stallman then asked the company supplying the printer for a copy of the source code so that he could replicate the notification function in this new version of the printer driver. The company refused. The code to the printer driver was now closed, Stallman was informed. No one was allowed to tinker with it. 8
To Stallman, this was a moral offense. The knowledge built into that driver had been produced by many people, not all of whom had been employed by the company. There was something wrong, then, with the company locking up that knowledge. And this wrong sowed the seed in Stallman’s mind of a movement to resist this closing. 9….. (p.53)
Alan Cox, “Most of the great leaps of the computer age have happened despite, rather than because of, [intellectual property rights (IPR)]. [B]efore the Internet the proprietary network protocols divided customers, locked them into providers and forced them to exchange much of their data by tape. The power of the network was not unlocked by IPR. It was unlocked by free and open innovation shared amongst all.23….. (p.57)
The story of this battle between the government and Microsoft is not yet (at this writing) over. But the significance of the case to the argument that follows has little to do with what the appellate courts eventually say. For whether the claim is proven or not, its essence has a parallel to the lessons from chapter 3: Microsoft was accused of strategic behavior designed to protect its monopoly position. It was accused, that is, of using its power over the operating system to kill innovation that threatened this power. As Wall Street Journal writer David Bank puts it:
Any product that was popular represented a potential threat to the Windows platform because it could become a platform itself. Integration was Microsoft’s weapon for disabling the threats to Windows.... Anyone who competed against Microsoft’s platform lost. 47

Again, that’s not to say that Microsoft chilled innovation generally. Obviously, and again, the Windows platform has been an extraordinary boon for innovation. Thousands of programs have been written for it; hundreds of thousands of coders have used its structure to their own advantage. But sometimes an innovation challenges Microsoft, either by challenging the monopoly Microsoft has been said to hold or by making its business model less attractive in the future. And here, the government charged, Microsoft has been quick to respond. If your business model threatens it, then Microsoft will respond by killing your business. Gates was not, the government alleged, willing to play on a level playing field. (Indeed, as David Bank quotes Gates “yelling” at executive Paul Maritz, “You’re putting us on a level playing field! You’re going to kill the company.”)48
Whether or not you believe that Microsoft engaged in the behavior that the government charged (and whether or not the Court of Appeals and the Supreme Court ultimately rule that such conduct violates the antitrust laws), the important point is this: Microsoft could engage in the behavior alleged by the government only because Microsoft controlled its own code. The source code for the Microsoft operating system is closed; Microsoft does not reveal the source to the public generally. Thus, Microsoft can change and direct its source code in ways that advance its own strategic vision. It is capable, that is, of behaving strategically, by changing its code to challenge competitors, because its code is closed. It can “control the pace of innovation” because only it can muck about with its code. 49

Yet this is just the power that open code doesn’t have. An open code project can’t bundle a product the users don’t want; users, because source code is there, are always free to unbundle. An open source project can’t undermine a competing system; the competing system is always free to take the open source system and fight back. The source code for open source projects is therefore a check on the power of the project; it is a limit on the power of the project to behave strategically against anything written to the platform….(p.66-7)
This control had an increasingly profound effect upon radio programming. Early radio programming was different from today’s. The spectrum was not filled with commercial broadcasters and Rush Limbaugh. Indeed, there was no such thing as a radio commercial. Radio at its start looked a lot like the Internet at its start. Broadcasters on early radio included a wide range of noncommercial, religious, and educational services. Commercial radio was just a tiny fraction of the total. 4
But once the government got involved, all this quickly changed. It is an iron law of modern democracy that when you create a regulator, you create a target for influence, and when you create a target for influence, those in the best position to influence will train their efforts upon that target. Thus, commercial broadcasters—NBC and CBS in particular—were effective in getting the government to allocate spectrum according to their view of how spectrum should be used. 5 (This was helped by the broadcasters’ practice of offering free airtime to members of Congress.)6 The period from 1927 to 1934 saw an extraordinary shift in the nature of radio use—from a diverse collection of uses, some commercial, most not, to a single dominant use of the radio spectrum—namely, commercial radio. As Thomas Hazlett writes, “[B]y the mid-1930s, [NBC and CBS] would be responsible for an astounding 97% of night-time broadcasting.”7

This transition was not without opposition. When radio stations started advertising, they incited a massive and continuous campaign of opposition. Herbert Hoover said of the trend, “It is inconceivable that we should allow so great a possibility for service to be drowned in advertising chatter.”8 Poll after poll indicated that the people hated the emerging commercial system. 9
Over time, however, people got used to the commercials, and the opposition died. By the mid-1930s, Congress was ready for a new statute, the Communications Act of 1934. The act charged a renamed agency (the Federal Communications Commission) with the duty to regulate “as public interest, convenience or necessity” requires within certain spectrum-defining areas. 10 And it empowered the FCC to make decisions about how best to use the spectrum in the public interest.
This extensive regulation of what before 1912 had been a purely unregulated practice of wireless communication was upheld by the Supreme Court in 1946. Regulation of the radio spectrum was necessary, Justice Felix Frankfurter argued, because “[t]here is a fixed natural limitation upon the number of stations that can operate without interfering with one another.”11 Justice Frank Murphy, though dissenting from the Court’s opinion, agreed with the Court at least this far:

Owing to its physical characteristics[,] radio, unlike the other methods of conveying information, must be regulated and rationed by the government. Otherwise there would be chaos, and radio’s usefulness would be largely destroyed. 12

It was in the nature of things, the government argued and the Court agreed, that only if spectrum were controlled by the government would spectrum be usable. Spectrum could not be free….(p.74-5)
There are many stories about corporate owners influencing the news within their organizations—steering the news away from stories that reflect negatively upon those corporate owners. 46 Congressman Newt Gingrich expressly recommended as much in 1997, when he told the Georgia Chamber of Commerce that business leaders and advertisers “ought to take more direct command of the newsroom.”47 (p.118)
The argument of the cable industry in favor of monopoly was simple: We need, they argued, incentives to risk the investment to build out cable TV. That build-out would be worth it to us only if we could be certain to recover our investment. This certainty would be adequately provided if we had complete control over the programming on our network. If we get to pick and choose the shows we run, and we get protected monopoly status in the local markets we run cable for, then we will have sufficient incentive to build out cable to secure our needs.

Not a bad deal, if you can get it. And even though “every major policy study on how cable should be regulated recommended that cable operators be required to provide at least some degree of non-discriminatory access to unaffiliated program suppliers,”9 Congress and the FCC ignored these recommendations. Cable was given control both over the physical infrastructure that built their network and over the code layer that made their network run.

From our perspective, however, there should be something odd about this decision. Telephones and television were both technologies that depended upon wires. Yet just as the nation was resolving to limit the control that the network owner had over one set of wires—telephone—it was increasing the control the network owner would have over a different set of wires—cable. From our perspective, these different policies for the same thing—wires—deserve an explanation, at least.
But at the time, telephones were as different from television as cars are different from buggies. It was not obvious to legislators (or if it was, they didn’t let on) why the rules governing one should also govern the other. And even if it was obvious to some, the commercial pressure for exceptionalism was too great to resist. Just at the time America was coming to second-guess its first great network monopoly (telephones), it embraced and supported the construction of a second with the potential to be just as powerful.

So cable entered its golden years, which were brightened in the late 1970s only by the innovations of Ted Turner. Turner looked at cable and saw a waste of wires. Cable, he felt, could become a competing broadcasting network, not simply the supplicant to television broadcasters. So Turner bought access to a satellite and started broadcasting content across the satellite to cable stations everywhere. Cable thus became a content provider as well as a conduit for other people’s content. 10

By the early 1990s, cable was the dominant mode of accessing television in America. 11 It had gone from the farms to the centers of the largest cities. The number of stations increased dramatically, as the technology enabled hundreds of channels. And the range of channels exploded with the decrease in the number of viewers needed to make any particular channel succeed. When channels multiplied, the opportunity cost for each new channel fell; when opportunity costs fell, then uses of the networks increased.

Cable was about to hit a number of bumps in the road, however. Some were of its own creation—perceived “price gouging” led Congress twice to regulate the prices of cable services. But some it did not control. 12 Satellite TV was the first of these; the Internet was the second.

Satellite TV offered competition to cable in the same way that cable had offered competition to TV. Services like DirecTV provided access to many more channels of television than cable, as well as the possibility to sell TV on a pay-per-view basis. Yet because it used no wires, the costs of providing this service were relatively low—at least when compared to cable. Thus, satellite provided a great challenge to the monopoly that cable was.

To respond to this competitive threat, cable needed to upgrade its systems to make it easier to supply two-way communication. Two-way communication was needed so consumers could make pay-per-view selections for television; fatter pipe would make it possible for cable to provide a wider range of content.

But while upgrading to compete with satellite, cable soon realized that it could also upgrade to provide two-way Internet service. And if it upgraded to provide Internet service, then cable could also be used to provide telephony. Thus the upgrade could secure cable in its primary market, while solidifying cable in these two new and growing markets…..(P.152-3)
There’s lots of junk on the World Wide Web. And there’s lots that’s worse than junk. Some of the stuff, for some people, is offensive or worse. The worse includes material deemed obscene or, and this is a very different category, “harmful to minors”—aka pornography.

As I’ve described, there’s a long and tedious history of Congress’s efforts to regulate porn in cyberspace. 11 I’m not interested in that story here. I’m interested here in the efforts of companies to regulate porn in cyberspace by producing code that filters content.

The code I mean is referred to affectionately as “censorware.” Censorware is a class of technology intended to block access to Internet content by forbidding a Web browser to link to the blocked sites. Censorware companies make it their job to skim the Web looking for content that is objectionable, and they then add the link to that content to their list. Their list of banned books is then sold to parents who want to protect their kids. There is obviously nothing wrong with parents exercising judgment over what their kids get to see. And obviously, if the choice is no Internet or a filtered Internet, it is better that kids have access to the Internet.

But this does not mean that censorware is untroubling. For often the sites blocked by censorware systems are themselves completely unobjectionable. Worse, sites often are blocked merely because they oppose the technology of censorware. In December 2000, free speech activists at the civil rights group Peacefire reported that a number of censorware systems had begun to block Web sites affiliated with Amnesty International. 12 This is just the latest in an endless series of similar cases. They all point to a technology that is fundamentally at odds with the openness and free access of the original Net.

In 1999, Eddy Jansson of Sweden and Matthew Skala of Canada decided they wanted to test out one instance of censorware—a product called Cyber Patrol. They therefore wrote a program, CPHack, with which a user could disable Cyber Patrol and then see which sites Cyber Patrol banned. The code thus made it easier, for example, for a number of sites to complain about the censorious practices of Cyber Patrol.

The owner of Cyber Patrol was not happy about CPHack. So like most owners unhappy with what others do, it raced into federal court. In March, Mattel brought suit against the authors and Peacefire, demanding it stop distributing its code for liberating the CP list.

Its claim was copyright violation. These coders, Mattel argued, had violated Mattel’s copyright by reverse engineering the code for Cyber Patrol—contrary to the license under which Cyber Patrol was sold. Because their use of Cyber Patrol was unlicensed, it was illegal.

There is something very odd about the claim that Mattel was making. Copyright’s core is to protect authors from the theft of others. It is to protect Mattel, in other words, from someone who would steal Cyber Patrol and use it without paying for the program. Copyright is not ordinarily aimed at protecting authors from criticism. It doesn’t “promote progress” to forbid criticism of what has happened before. But this is exactly how the law was being used in this case. By claiming that a contract that was attached to the copyrighted code banned a user from criticizing the code, the law was being used to restrict criticism.

Within two weeks, Mattel had received a worldwide injunction against the distribution of CPHack. 13 The injunction was not just against the authors of the program; it also extended to those who linked to the program’s site or who merely posted the program. These secondary posters believed they had a fairly strong right to post the code for CPHack. The code stated it was “GPL’ed,” which meant that anyone was free to take it and post it as he wished. But all these “conspirators” (as the law had to call them to justify this extraordinary federal action) were now bound by this emergency injunction of a U.S. court. And Mattel then moved quickly to perfect and make permanent this force of law……(p.184-5)
iCraveTV was a site that streamed television content over the Internet. 23 The site was located in Canada, where Canadian broadcasting law made such streaming legal. Under Canadian law, anyone has the right to rebroadcast television content, as long as he doesn’t change the content in any way. iCraveTV wanted to take advantage of that right to give computer users access to TV.
But then where was iCraveTV? In one obvious sense, it was in Canada. But when it made itself available on the Internet, it was also, simultaneously, everywhere. That has been the character of the Internet since its birth—to be on the site at any place is to be on the site in every place.

iCraveTV took some steps to limit itself to one place. It tried to block non-Canadians from the site. But when it began this process, the technologies for blocking were not strong. iCraveTV asked for a telephone number, but of course it had no easy way to verify that the telephone number you gave it was your telephone number.

Soon after iCraveTV went on-line, copyright holders in the United States brought suit to shut it down. The theory? By setting up an Internet service to broadcast TV, iCraveTV was broadcasting TV into the United States. It was therefore violating U.S. copyright law (by “publicly performing” what iCraveTV streamed to American viewers). Until it could “guarantee,” as the Hollywood lawyers put it, that no United States citizen would get access to this free Canadian TV, the Canadian site had to be shut down.

There was a significant dispute about how hard iCraveTV was working to keep non-Canadians out of its site. The Hollywood lawyers hired Harvard Law School Berkman Center’s boy genius Ben Edelman to demonstrate just how easy it was to hack the iCraveTV site. But whether easy or not, the significant issue about the case is this: How much should someone in one country have to be burdened by the laws of another country?

For example: Imagine the Chinese government telling the American site China Online24 that it must shut down until it is able to block out all Chinese citizens, since the content on China Online is illegal in China. Or imagine a German court telling that it must stop its selling of Mein Kampf until it can guarantee that no German citizen will be able to get access to that book—since that book is illegal in Germany. Or imagine a French court telling Yahoo! that it has to block French citizens from purchasing Nazi paraphernalia, since that is illegal in France. (Oops, no need to imagine. A French court did just this. 25)

In all these cases, we are likely to think that the action of these foreign governments is somehow illicit. That the free exchange of the Net tilts us in favor of open and regular access. That steps to shut down foreign sites because of local laws are the very essence of what the Internet was designed to avoid.

But when it comes to copyright law, we become like the Chinese, or Germans, or French. With respect to law, we too want to insist upon local control—especially because local law here is so strong. So with respect to copyright law, we push local control. And the result is the birth of technologies that will facilitate better local control.

iCraveTV, for example, promised the court that it would develop technology to make it possible to block out everyone except Canadians. Jack Goldsmith and Alan Sykes have described the growing collection of technologies that will achieve the same end. 26 These suggest that the future will be very much like the past: life on the future Internet will be regulated locally, just as life before the Internet was regulated locally.

How we will get to that future world was one point of Code and Other Laws of Cyberspace. But for now, the significance of iCraveTV is again the attitude it evinces. Though there was no proof that any revenue would be lost by virtue of people streaming content through their TV, and though Canadian law was assumed to protect this behavior in Canada, the control industry raced to court to shut down the alternative. The courts complied. 27…. (p.190-1)
This skepticism has been with us from the start of the patent system. Ben Franklin thought patents immoral. 74 Some of the greatest inventors of our history have refused to patent most of their inventions. 75 Science has traditionally resisted patents. 76 And even Bill Gates, no patsy when it comes to intellectual property protections, expressed skepticism about software patents. As he wrote in a memo to Microsoft executives in 1991:

If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete standstill today. 77

The first patent commissioner himself—Thomas Jefferson—was also extremely skeptical about these forms of monopoly. Commenting upon the proposed Constitution, with its proposed provision for granting monopolies to cover writings and inventions, Jefferson wrote that he wished the draft would be amended to eliminate any monopolies. As he wrote:

I sincerely rejoice at the acceptance of our new constitution by nine states. It is a good canvas, on which some strokes only want retouching. What these are, I think are sufficiently manifested by the general voice from north to south which calls for a bill of rights. It seems pretty generally understood that this should go to juries, habeas corpus, standing armies, printing, religion and monopolies.... The saying there shall be no monopolies lessens the incitement to ingenuity, which is spurred on by the hope of a monopoly for a limited time, as of 14 years; but the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression. 78

Jefferson’s views about patents were not his alone. From the beginning of the Supreme Court’s interpretation of the law of patent, it has affirmed that patents are no natural right; that the scope of patent rights is just as far as Congress extends it. And Congress should extend it only when Congress has reason to believe the monopolies it extends will do some good…..(p.206-7)
The aim of the FCC was to enable local community broadcasts while assuring the broadcasts would not interfere with existing radio stations. The technical staff of the FCC conducted tests to determine how low-power the stations would have to be to assure no interference; the rules the FCC eventually proposed were more conservative than the technical staff recommended. “As a result of the FCC’s conservatism, community groups in large urban centers with many incumbent broadcasters would find it difïficult, if not impossible, to operate. But it would have enabled over 1,000 community organizations, churches, and schools to create a new medium for local discourse.”14

But the existing stations balked. At first they complained to the FCC. When the FCC concluded that their evidence of interference was not substantiated, the broadcasters went to Congress. Congress didn’t care much about these low-power stations (not many campaign dollars, after all, come from them). It did care about the broadcasters who were threatened. So Congress passed a law to restrict low-power broadcasters. 15 Large FM stations were protected from increased competition; that protection was effected through a law that silenced other speakers. So much for the First Amendment’s demand that “Congress shall make no law . . . abridging the freedom of speech.”

An example closer to the technology at the core of this chapter is the case of “AirPorts” in “airports.” The AirPort is a wireless device sold by Apple Computer. It uses the 802.11b protocol to enable a computer to connect to a network at very fast speeds—11 megabits per second is the maximum for 802.11b, which is about twice the current DSL or cable speed. The device uses spread spectrum technology within one of the three swaths of spectrum that the FCC has allocated for “unlicensed use” for data.

Apple was a pioneer in pushing this form of technology. But the AirPort connects not just Apples. Any computer with an 802.11b wireless card can connect to an AirPort. And other companies, too, are building the equivalent of AirPort modems. Indeed, a whole sector is growing up around this possibility of wireless network access.

Some got the idea of putting AirPorts (or their equivalent) in airports—enabling travelers to connect to their Internet while sitting in an airport lounge. But soon local airport authorities started to complain: wireless modems, they argued, would interfere with air traffic controllers. They would also reduce the usage of pay phones. 16

Now, I don’t doubt that interference is possible for some of these new technologies. It is important that we be certain that new technologies don’t damage important pieces of the existing infrastructure—at least those parts that we want to keep. But this complaint about air traffic was just silly. There is more interference caused by a hair dryer than by an Apple AirPort modem. And the notion that airport authorities should be able to stop progress to protect their telephone revenue is absurd. 17

What’s needed in contexts like this is a balanced way to evaluate these claims of interference to resolve whether they are real or just pretext. More generally, what’s needed is a commitment to progress in the use of spectrum resources…..(p.224-5)
This freedom the recording industry calls theft. But they don’t call it theft when I hear an old favorite of mine on the radio. They don’t call it theft when they are recording takeoffs of prior recorded music. And they don’t call it theft when they make a new version of “Jingle Bells.” They don’t, in other words, call it theft when they are using music for free in ways that have been defined by the copyright system as fair and appropriate uses.

The issue we must confront is whether this free distribution should continue to be free. And the solution to that question is to keep an important distinction in mind: As we’ve seen, there is a distinction between music being “free” and music being available at zero cost. Artists should be paid, but it doesn’t follow that selling music like chewing gum is the only possible way. 17
Here, too, a bit of history helps. As I have described, there have been many contexts where Congress had to balance the rights of free access against the rights of control. When the courts said piano rolls were not “copies” of sheet music, Congress balanced the rights of composers against the rights to mechanically reproduce what was composed. It balanced these rights through a compulsory license that enabled payment to artists while assuring free access to the work produced. The same is true in the context of cable TV. As we saw in chapter 7, the Supreme Court twice said that cable TV providers had a right, under existing law, to free TV. Congress finally changed those rights, but again, in a balanced and sensible way. Cable providers got access to television broadcasts, but broadcasters and copyright holders had a right to compensation for that access. This compensation again was set by a compulsory licensing term. Congress protected the author, but not through a property right.

The same solution is possible in the context of music on the Net. 18 But here, rather than balance, the rhetoric is about “theft” and “crime.” But was it “theft” when cable TV took television broadcasts?

Congress should empower file sharing by recognizing a similar system of compulsory licenses. These fees should not be set by an industry intent on killing this new mode of distribution. They should be set, as they have always been set, by a policy maker keen on striking a balance. If only such a policy maker were somewhere to be found…..(254-5)

To read Lessig’s old blog posts, buy his books or download his free E-books see the following:

(For more information on Blog see Blog description and table of context for most older posts.)

The following are the original replies when this was first posted on Open Salon.

(Some posts on Open Salon were deleted when accounts were banned; regrettably, this leaves comments to posts that no longer exist.)

Copyrights are doing more to suppress research than they are to encourage it as you, Lawrence Lessig and others have indicated. Copyrights have been turned into a control system to preserve power for the elites. Even when they were first established they probably weren’t the best idea but once the elites realized they could use this system to maintain control they decided to keep it and avoid discussing other options.

zacherydtaylor July 20, 2011 09:26 AM

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