Month: March 2003

Went to the candle-light vigil in the little park across from my house last night. There were 80-100 people, standing quietly among the trees. Those experienced at candle-light vigils had wax-coated paper cups to catch the wax.
I brought a havdala candle, the multi-wicked candle used to mark the transition between the Jewish sabbath and the weekday. It felt appropriate, because we’re marking a transition between a time of peace and a time of war. Also, the candle has multiple wicks, which has a nice e pluribus unum feel to it.

In his talk at SXSW, Larry Lessig expressed disappointment and surprise that the Supreme Court ruled against Eldred.
He argued the case using a good conservative legal argument. According to the intent of the framers of the constitution, copyright holders should be granted a limited monopoly in order to catalyze the creation of more work. Nevertheless Congress has extended copyright terms well beyond the plain meaning of “limited term”, and well beyond the incentive for artists to create new works. Despite the clear legal case, the justices still ruled in favor of extending copyright.
The conclusion Lessig draws is to be pessimistic about the court and political system. Instead, he’s working build market share for more moderate licenses, using the Creative Commons approach.
On the one hand, I don’t think it’s necessary to be quite so pessimistic with respect to the political process.
On the other hand, I don’t think Lessig is pessimistic enough about the influence of money on politics.
Also, the success of Creative Commons depends on new, profitable distribution channels for content. I believe that it’s possible, but I don’t see the way from here to there yet.
Courts, Politics, and Dred Scott
The Eldred case is the Dred Scott case of copyright law. In 1857, the Supreme Court argued that Dred Scott must remain a slave, despite the fact that he had been living in free states.
Although there was legal precedent and a good case to free Dred Scott, common knowledge accepted slavery as a fact of life and a part of the system. The court was able to rule as it did, because slavery was a reasonable outcome at the time.
Today, common wisdom holds that intellectual property is property, like a house or an automobile. Just as it would be unnatural and communistic for the government to seize one’s house and give it away after fifty years, it is “stealing” to take creative works and give them to the public domain.
The idea that “content is property” was pervasive in the late-90s, when the DMCA and copyright extensions were being passed. Media corporations were almost the only voices speaking to Congress.
That picture has changed. Geeks, who were largely technolibertarian five years ago, are aware that the government isn’t going to wither away, and we need to wake up in order to preserve civil liberties. The mainstream media is covering the story now – there was a front page NY Times article on Eldred.
And there’s a good story to tell to the public at large. Snow White, Pinocchio, and Mickey Mouse came from the public domain. New culture is built from old culture. We need to keep telling that story. When common sense changes, congress and the courts will act differently.
All the Money in the World
One reason for Lessig’s pessimism with the political process is that the advocates of closed culture have “all the money in the world.”
The US political process is dominated by money. The cost of running a campaign has doubled in the last decade. Politicians spend 80% of their time raising money. Politicians need money, corporations want law, corporations buy politicians.
In his speech, Lessig gave a moving re-interpretation of a Jack Valenti speech, citing values like democracy and freedom. But we don’t live in a democracy any more, we live in an oligarchy. Money rules.
If we don’t develop effective ways to reduce the role of money in politics, the wealthier side of an issue will continue to be able to buy the law. I’m trying to think globally and act locally on this issue, but I don’t see a clear way out.
Creative Profit
The goal of the Creative Commons project is to build market share for new, more moderate content licenses that reserve some rights for content creators, and create fewer restrictions on the reuse of content. For example, a new Creative Commons license for music permits sampling, but doesn’t permit copying the whole song.
The success of Creative Commons depends on getting non-trivial market share in terms of dollars, not just units (as the market analysts put it). How many authors will follow Cory Doctorow by publishing their work online? (Cory’s license enables readers to freely download and copy the work, as long as they attribute it, don’t resell it, and don’t make derivative works). How many musicians will follow Janice Ian, who argued that Napster helps her career.
If a hundred thousand bloggers, writing for love and fame, use Creative Common licenses, that will put more culture in the public domain. But it won’t change the way business is done.
Most creators sell their soul to publishers, in the futile hope that publishers will market their books and music, and turn them into stars. In theory, there are new business models for freer content, but there are few success stories yet.
What will be the Creative Commons equivalent of IBM, which uses Open Source Software to make billions of dollars in hardware and consulting sales?
I believe there’s an opportunity, but I can’t see the commercial business model yet.
What do you think?

At SXSW, Larry Lessig gave a stirring and eloquent speech about copyright and the freedom to create culture. And he explained to an audience of designers and bloggers how using the Creative Commons license can help.
Congress keeps extending terms of copyright, far beyond the limited terms specified by the founders. Today, most content produced in the last century is locked up, even though it is out of print and inaccessible.
Disney, a company that has led the charge to extend copyright, created its own popular works — Mickey Mouse, Snow White, Little Mermaid, Aladdin — from works in the public domain. New culture depends on free content, and content isn’t free.
One of the most striking points in the talk was Lessig’s explanation that we have free speech in the realm of politics, but we don’t have free speech in the realm of culture, since corporations now own most cultural content.
Lessig tried to clear the copyright logjam, by taking the Eldred case up to the Supreme Court, and lost the case. Creative Commons is an alternate strategy that bypasses the current extreme copyright policy, by creating a realm of moderate copyright law. Instead of the standard copyright, with “all rights reserved”, an artist publishes work using a license holding “some rights reserved.” For example, there’s a new music licence that forbids copying the entire song, but permits “sampling.”
The Creative Commons project intends to create a new reality in which large quantities of content are protected by more moderate licenses. I think this is a great idea, and will look at Creative Commons license for this blog.
But it’s not enough. More on this in the next post.

As posted in comments to Joi Ito’s blog…
Much of our “electronic democracy” discussion focuses on processes of organizing, deliberation and decision-making.
However, in the US, an elected representative spends 80% of his or her time — not deliberating, or organizing, or making laws — but raising money.
Any proposal for new ways of doing things needs to take money into account.
Recently, I heard of a new system for online political organizing, which was essentially multi-level marketing. A central organization sends financial targets to regional organizations, which sends targets to local organizations, which raise money and feed the money back up the chain.
Are new proposed mechanisms of organizing cheaper that the methods we have now? If not then we’re stuck in the oligopoly trap.

Last week Thursday, I went to the State House to testify on a bill.
I’m on the board of Campaigns for People, a group that advocates for Campaign finance reform in Texas, and EFF-Austin, a group that advocates for civil liberties related to electronic technology.
There was a bill up for debate in the House to close a loophole in the law on electronic campaign filing.
In Texas, candidates with campaigns of more than $20,000 in contributions are expected to file electronically. But there’s a loophole — candidates can claim an exemption if they don’t use a computer.
The loophole is being abused badly. A candidate with a recent Harvard Law degree claimed the exemption. Several statewide campaigns with over $200,000 in contributions claimed the exemption.
They asked me to come testify at the elections committee hearing. I had never done this before. The hearing room was in the basement of the state house. The inside of the building is clean and looks newly and expensively renovated. There is a large, spiral staircase (in addition to the elevators), spacious halls, rooms with large wooden doors. The halls are full of people walking purposefully.
You show up at the hearing room. The committee is in a row of chairs at the front, with a court reporter taking notes (or whatever they do with current technology). The room is full of politicians, lobbyists, citizens on benches. Young aides flit up and back, carrying slips of paper to the representatives. The committee chair introduces the bill in a ritualistic monotone. Witnesses are called by name, come up to a witness podium and talk for 2-5 minutes. Some simply put down their name in favor or against the bill, but don’t talk. At times, the committee members ask questions of the witnesses.
At the end of the debate period, the committee members share some nearly-telepathic communication about what to do. They then vote to pass, defer consideration, or (what’s the opposite of pass?) the bill. The chair calls the role in ritual monotone. Most of the time, apparently, they hear testimony, defer to the next meeting, and vote at the next meeting.
I spoke after Fred Lewis, the Campaigns for People director. Fred gave many examples of how the loophole was being abused. I talked about how it was reasonable to expect candidates to have internet access; how important it was for citizens to have campaign contribution data to analyze before the election; and the value of bringing the Texas campaign system up to the high standard set by other state egovernment initiatives.
The bill that I testified for turned out to be the anticlimax of the day.
The previous bill on the schedule sparked a contentious debate, fueled by Dallas ethnic politics. That bill proposed that people who help voters fill out absentee ballots sign their names, and made it a misdemeanor or felony for various aspects of co-ercing someone to vote against their will.
The reason for the proposal was allegations of abuse, in which aggressive campaign workers would intimidate elderly and infirm voters. One of the members of the committee, an African American woman, had two staffers indicted for election fraud, for their assertive practices with absentee voting (the charges were dismissed).
The white legislator proposing the bill gave a folksy talk, quoting “the famous philosopher, Popeye”, and highlighting the penalties for the “four nasties”, like helping someone vote without their consent, and mailing the ballot without consent.
Two of the African American committee members gave impassioned speeches about the way that the black community cares for its elderly and sick members, unlike white folk. They linked the issue to the voting rights act, efforts to end the poll tax, and other struggles to get black people the right to vote. They noted that the election commission investigated allegations in the African American South Dallas community, and didn’t head up to North Dallas to investigate election practices among white people.
By the time Bill 999 came up, it was 5:30pm. Most of the people in the audience, including folks who came to testify on 999 had left. Fred Lewis talked, I talked, and a member of the Ethics commission talked briefly about the system. The bill was deferred for a vote next week. Fred believes it will pass.
The CFP folks are asking me back to testify for the Senate version of the bill next week.