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Lessig Blog
syndicate (?) this blog: 
The comments to Living With Ghosts have done more for me than anything could. "Thank you" is too weak, but thank you.
Many have written asking, "What can I do?" Here's a map for anyone interested.
As the story recounts, we're waiting for a decision from the New Jersey Supreme Court about whether New Jersey's law, which immunizes charities from "negligence," is subject, as the trial court said, to a "judicial gloss," making the statute "absolute," and therefore excusing the organization:
"from liability for any degree of tortuous conduct, no matter how flagrant that conduct may be. Accordingly, plaintiffs’ contentions that employees and agents of the American Boychoir School acted willfully, wantonly, recklessly, indifferently – even criminally – do not eviscerate the School’s legal protections."There is -- and there should be -- nothing that can be done about that case while the Court is considering it.
But New Jersey has a legislature as well as a Supreme Court. And the real hero in this case -- John Hardwicke, who has given everything he has not just to his case, but to changing the law in New Jersey -- has, with others, started a movement to get New Jersey to FixTheLaw in a part that is unrelated to the case before the Supreme Court.
Even if we win our case, the law in New Jersey would still immunize a charitable institution from "negligence" in the hiring of a teacher. That means if a school hires a teacher without taking any steps to verify the teacher's past -- for example, asking why the teacher was fired from his last job -- the school is immune from liability.
Assemblymen Cohen, Chiappone, and Bateman have introduced a bill to remove that immunity, so that a school would have the same duty that all of us have -- to take reasonable steps to avoid foreseeable harm, at least if that harm is sex abuse. Yet this bill has been stalled by the very powerful lobbying of some -- actually, primarily, one:
Leaders from the Catholic Church have opposed the change. Some of the same leaders, representing the "Catholic Conference of Bishops," also filed a brief in our case asking the Court to affirm the "absolute" immunity -- even for intentional acts -- that the trial court had found.
It is completely beyond me why the Church spends its resources to make children less safe. No doubt, the Church has its own issues about liability. But is money really a church's only concern? Do its values really say that it is more important to avoid its own liability than to protect children in the future? Or more accurately -- that it is right to protect its assets by making children in the future less safe?
In any case, there are more voices in New Jersey than this one. I've hesitated before about the appropriateness of noncitizens addressing New Jersey's issues, but that may just be prudishness. And anyway, I assume the "Catholic Conference of Bishops" is not located in Trenton.
So: Hardwicke has a comprehensive site with links to contact legislators, and to contribute. If you are looking for something to do, I'd be grateful if you followed those leads. Or if you would lead others to them. Or, if you're a Catholic, I'd be grateful if you would follow your own leads to the conscience of your church.
South African lessons: Human Sciences Research Council (HSRC)
One of the most interesting presentations at this fantastic conference was given by Eve Gray, of Eve Gray & Associates. Gray was asked to study the publishing strategy of the Human Sciences Research Council (HSRC) in South Africa. This research institution had a traditional strategy of publishing lots of research books, and selling them. Gray convinced them to change their strategy -- to give away all their research books for free online, and offer a high quality print-on-demand service for anyone who wants the paper version. The result: "the sales turnover of the publishing department has risen by 300%." As she concluded her presentation, "giving away books and lead to an increase in our book sales." There's much much more in her interesting analysis. She has generously offered it for downloading. Here's the press release.
Hyperion Records is one of the very best independent classical labels. According to its news page which is now up, it's lost an appeal which will now jeapordize its existence. Hyperion was sued by Dr. Lionel Sawkins, who had created a performance edition of four works by Lalande. The British court has now concluded that a performance edition, even one that does not claim to be an "arrangement," is copyrighted. Apparently, the "sweat of the brow" in producing the performance edition was enough to create an "original" work.
The British system shifts costs to the loser. That means the exposure could be "hundreds of thousands of pounds if not a million." Most charitably, this is a close question. If you believe that this label should not go bankrupt just because they tried to defend the side they defended, you may think about offering some support.
A potentially important South African Constitutional Court decision
It's just been announced that the South African Constitutional Court has decided in favor of Laugh It Off. Laugh It Off had produced a series of t-shirts which used trademarks to make critical points about the trademark owner. The most famous of these shirts was one that used a famous beer label "Black Label" and remixed it to a "Black Label, White Guilt" logo. The producers of the t-shirt were sued, and lost in three courts. The Constitutional Court has now apparently reversed the judgment. I've not seen the opinion yet, and will update when it is posted. Here's an article with some background.
Update: Here's the decision.
The kids at FreeCulture.org have gone legit. Read about FreeCulture.org, Inc..
ccSouth-Africa: "Commons-Sense Conference"
So day two of a fantastic conference at Wits, in South Africa. Sponsored by the LINK Centre, the conference celebrates the launch of Creative Commons South Africa. The conference is being covered by 15 students and a couple staff members from the New Media Lab at the Rhodes University School of Journalism and Media Studies. The site has moblog, video links, blog, pictures and audio -- basically one of the best examples of real time conference coverage that I've seen. What they've done would be amazing enough in the core of Silicon Valley. But in this network-thin space, it is really extraordinary.
To everyone who has written about my ghosts, thank you. I am always stunned by the warmth of this community (though of course, stunned sometimes by the opposite as well). I had promised myself I would not read the piece, but the comments have forced me to break that promise. John is an amazing writer, and the piece has a rawness that is hard, but perhaps appropriate. (E.g., I rarely swear, though you wouldn't get that impression from the piece.). Three comments below, but first a plea: that we drop the H-word, and B-word from commentary about this. This is an important social issue because of how ordinary it is in fact; and we need it to be understood to be ordinary, so as to respond in ways that can check, and prevent it.
Update: hero, brave
{Update II: Please see this follow-up.
(more below)
another (perhaps the last US based?) iLaw Program
So the Berkman Center is sponsoring its annual iLaw program in Cambridge, MA, June 22-24. The program is great fun, and you even get to live in the dorms! Registration is here. I'm hoping we move these programs overseas, exclusively. But I'm just (one of) the teachers. There are scholarships and group rates, so ask.
NOTE: Reservations for rooms are required. Dorm rooms are available but you must check in with Wendy Koslow at the Berkman Center about availability.
I've just arrived in South Africa after speaking in Norway. I had been invited by Kopinor to participate in their 25th Anniversary. My speech was a classic reminder that audience is everything. I count it as a total failure. (More below)
{UPDATE: I apologize that this sounds (upon rereading and upon reading the comments) critical of Kopinor or the conference. That is not my meaning. I have disagreements, of course, but this is critical of me -- of my "failing to connect" -- with a community that is extraordinarily important to the future of these issues on the net. As I said in the talk, such societies are often better at dealing with the rights issues we confront in the US; working out where and how is the constructive challenge we face. My talk is available here. The other presenter in my panel is here. And the question and answer session is here. }
My son has an imagination. At 20 months, he spent an hour playing a game in which his stuffed boxer (as in the dog) played with his plastic spider. The spider would ride the dog. The dog would sniff the spider. And all the time my son was split with laughter. (more in the extended entry below)
first we're a "virus," now we kill people with AIDS
Matt's angry about an article in Billboard that is being distributed by Reuters. The article deserves some context.
Last December, Billboard published a piece by its legal affairs editor, Susan Butler. The piece opened with a quote from Michael Sukin, "founding member of the International Association of Entertainment Lawyers," saying that Creative Commons had emerged as a "serious threat to the entertainment industry." The piece then asserted:
The nonprofit organization--also known as Creative Commons--urges creators to give up their copyright protection--which lasts for the life of the author plus 70 years under U.S. law--by selling their copyrights to the commons for $1,according to its Web site. In return, the authors receive certain rights that they can use for either 14 or 28 years, or they can donate all rights to the pubic domain for everyone to use.The "movement," Sukin stated, had "spread like a virus" and "U.S. copyright income" could be at risk.
The hyperbole from Mr. Sukin -- a lawyer -- was funny. But what struck me in the article was the assertion by Butler that "Creative Commons urges creators to give up their copyright protection" in exchange for $1. I couldn't begin to understand what she was talking about. Obviously, our licenses enable artists to choose to waive certain rights -- while retaining others. (Remember: "Some Rights Reserved"). But they are licenses of a copyright; they couldn't function if you had "give[n] up" copyright protection. The vast majority of creators adopting Creative Commons licenses keep commercial rights, while giving away noncommercial rights (2/3ds). It's hard to see how waiving noncommercial rights would do anything to "U.S. copyright income."
So I contacted Butler to ask her what she was talking about. We connected over email, and she said she'd check into it. She then pointed me to the Founders' Copyright, which indeed does offer $1 in exchange for someone limiting a copyright to 14, or 28 years. I had frankly forgotten about the way the Founders' Copyright functioned, mainly because nothing we do today has anything to do with that license, as Evan pointed out in his birthday wish for the still-born license. As far as I knew at that point, precisely 3 works have been licensed under this license (my own books). O'Reilly is processing more. But to describe the work of Creative Commons as this is either to listen to Mr. Sukin without checking the facts, or not to care about the facts. You could say, for example, that Billboard is a publication that publishes letters to the editor, and that would technically be true. But obviously, though technically true, it would be a totally false characterization of what Billboard is.
I therefore suggested the story should be corrected. It wasn't. Instead, a month or so ago, we learned that the same writer had been assigned to write an "indepth" story about Creative Commons. I thought the idea a bit odd. I raised its oddness to the magazine. According to their standards of truth, what Susan Butler had published before was correct. They were confident that she would produce the same again.
That, of course, was my fear as well.
The Billboard piece is beautifully written -- indeed, it has a cadence to it that is masterful. There's a tide -- in and out -- of good, crested with criticism, all building to the part that got Matt so angry -- as he put it, the suggestion that Creative Commons "kills people with AIDS."
Yet it's very interesting to map the structure of the argument. The piece has some quotes from me, and Hal Abelson in support. It quotes two people opposed. One of the two is Mr. Sukin again. The other is David Israelite, president of the National Music Publishers' Association.
Israelite doesn't actually say any about us. He's worried about the people we hang around with. As he says,
"My concern is that many who support Creative Commons also support a point of view that would take away people's choices about what to do with their own property."
And later, Butler reports,"Israelite says that often when people give away their own property under a Creative Commons license, 'it is really an argument why others should be forced to give away their property.'"I love it when people tell me what my argument "really" is. The whole premise of Creative Commons is that artists choose. We give licenses to creators. How exactly empowering creators is "really an argument why others should be forced to give away their property" is bizarre to me. By this reasoning, when Bill Gates give $20,000,000,000 to help poor people around the world, that's an argument for socialism.
Sukin's criticism is even more bizarre. Butler quotes him as saying "Lessig and his followers advocate a shorter copyright term." The link this point has to Creative Commons is left obscure by the author. The RIAA believes it is appropriate to sue kids for downloading music. They're supporters of Creative Commons. Does it follow that Creative Commons supports suing kids for downloading music? There are a wide range of supporters of Creative Commons, many of whom disagree about many matters fundamental. I should think that's a virtue of Creative Commons, not a vice.
There is one part to the piece, however, that does bothered. Not the dramatic flair at the end (this is Hollywood, remember. What would a story be without a villain killing a victim with AIDS in the end). The extraordinary part to me was the following:
The brief, which proposed affirming the appellate decision against RIAA and MPAA members, described the Creative Commons as a group with an award-winning project endorsed by many, including ex-RIAA chief Rosen and former MPAA leader Jack Valenti. It also listed as supporters the artists whose music was on the Wired CD.The piece then goes on to describe an apparent conversation that Butler had with Rosen, in which Rosen apparently objected to how she understood how her name was used. The reporter thus becomes actor, stirring up a controversy about whether the target of her piece has misbehaved.
Here's the brief. As you'll see when you read it, we mention Rosen and Valenti in the section titled "Interest of Amicus" -- a part of an Amicus brief which explains who the organization filing the brief is. What we say is this:
"The project has been endorsed by former MPAA president Jack Valenti, and by former president of the RIAA Hilary Rosen."No where in the brief do we suggest that Rosen or Valenti supported the argument we make in the brief. What we assert is that they endorsed the "project" -- which they have.
More extraordinary is the statement about the artists who were on the Wired CD. Again, here's what Butler wrote:
"[The brief] also listed as supporters the artists whose music was on the Wired CD."Here's what the brief says:"As part of a feature about Creative Commons, Wired magazine has released a CD with 16 tracks licensed under a Creative Commons license by artists including, among others, the Beastie Boys, David Byrne, Gilberto Gil, Chuck D, and Le Tigre."Notice, the brief says nothing about the artists being "supporters" of Creative Commons. It simply lists who was on the CD. Butler's statement -- that we listed them "as supporters" -- is just false.
Now you might think, well, cut her a break. She's just a journalist writing for Billboard. But again and again, Butler reminded me that she had in fact been a practicing lawyer. Her editors indicated the same. So I don't quite know how to understand a lawyer who can't read an amicus brief -- or for that matter, a lawyer who doesn't know the difference between putting something "into the public domain" and licensing it. These could well just be mistakes, of course. But they are surprising from someone with the experience she has.
The fair criticism of the article is that we don't do enough to warn people, or to push them to consult a lawyer first. That's a good point, and we're thinking about ways to enable referrals, and to do more than we already do to educate. Help here would be greatly appreciated.
It's also true, as Butler says, that there's a "blurring" between Creative Commons and the views of people like me (though my view of course is far from the view criticized by Israelite). I'd love -- really really love -- to find someone to replace me who might erase such a blur. I am not Creative Commons. It was not my idea. I am just devoting as much time as I can to push its message, and the tools it enables. I'd be very happy to find a way to spend less.
My favorite part of the article is the quote from Cary Sherman at the RIAA. God bless that man. As he is quoted,
"If a creator wants to dedicate his work to the world or wants to allow others to use it with the promise to credit the author, there has been no mechanism in place to provide public notice," RIAA president Cary Sherman says. "The Commons approach would basically solve this problem."Exactly right. We're giving artists free tools. What they do with them is their choice. There are many who believe, as Butler quotes Andy Fraser to say, that "[n]o one should let artists give up their rights." "Let." Read that word again: "let."
In my view, it is the artists who have the rights. And no one should take the role of deciding what we "let" artists do. Neither should anyone interfere with artists doing what they think best. Of course, and again, education is key. No one should be tricked. No one should waive rights without understanding what their doing. But neither should anyone think themselves entitled to wage war against artists doing what artists choose. Or if they do want to wage such a war, then let's at least be open about the paternalism in the position. If we're not going to "let" artists select Creative Commons licenses, then are we going to "let" them sign recording deals? Because I promise you this: there are many many more artists who are upset with their recording deals than with the spread they've enabled using Creative Commons licenses.
Butler's first article stated that Mr. Sukin is "lobbying" against Creative Commons. It's time we have an open conversation, Mr. Sukin. I challenge you to the sort of duel decent people engage: a debate. Let's let both sides be heard, and let's then "let" the artists decide.
learning from readers: RecycledTV
Chris O'Shea pointed me to Ben Hanbury's Free Culture page, which has a fanstastic collection of relevant stuff, and this beautiful movie called RecycledTV. The original link is here, but I've moved it to my server to share the bandwidth costs. I don't believe I've met Ben Hanbury. I should. Many should meet his work.
got a letter from Bruce Lehman
I got an email from Bruce Lehman, which was very big of him after I criticized him for his claim that I "seem[] to believe you can have a post-industrial economy without any copyrights."
Anyway, Bruce's email (and to be clear, it was sent not just to me, but to me as a "IIPI Supporter" (which has as much connection to the truth as his statement above)) was proud to announce a new section on the IIPI website called a "Discussion Forum."
The discussion forum was inspired by the "debate surrounding the European Union’s (EU) proposed Directive on Computer Implemented Inventions (CII)." As Bruce writes, "It is important to remember that the patentability of computer implemented inventions, or lack there of, will have a profound effect on European industry and competitiveness." Absolutely right, which is why is it so good that the IIPI has opened a discussion forum on their site so people can contribute to the "discussion" about IIPI's strong support for this software patent initiative.
I encourage all to answer Bruce's call: You can find the "CII Discussion Forum" here. And be sure to spread the word!
Patry ponders the consequences of free wine
William Patry has a new blog on copyright, which has covered a range of interesting issue. He's got an interesting link to the case Kathleen Sullivan recently won in the Supreme Court, Granholm v. Heald, finding that state limits on the sale of out of state wine violated the dormant commerce clause, the 21st Amendment notwithstanding. Patry suggests a link to database legislation, which seems to me a bit of a stretch (I think his view of database legislation is correct, but not sure it follows from Granholm.) He's also got a very interesting review of the anti-bootlegging statute, informed by his experience on the Hill when these were passed.
I've been living in a state of total denial about this fact, but it's time to confront it. Glenn Brown has left Creative Commons to take a job at Google (tftlt)(too famous to link to). This is fantastic news for Glenn. It is of course a big loss for us. Not unexpected -- there's only so far one can grow (and only so long one can sacrifice) in a nonprofit. But even if it has always been expected, we will all feel his absence for a long long time.
Glenn was CC's second ED. Molly Shaffer Van Houweling incubated the project as a fellow at Stanford before she became a professor of law at Michigan. I was very proud to convince Glenn to replace Molly. Glenn was (is) young. He had just completed a clerkship after just completing law school. He had been a student of mine at Harvard. But despite being young, I knew from that time that he would be the ideal executive director to get Creative Commons launched.
He was first, and crucially, a lawyer. That was essential to an organization that gives away free licenses. But more importantly, he has a sense of message and design that I knew we crucially needed. He is a beautiful writer, a perfectionist in all things expressive, and he worked as hard as anyone could to focus and lead Creative Commons to spread our meme. He was the perfect antidote to an organization started by a bunch of professors, and he built extraordinary loyalty and devotion from everyone within our team. On his watch, the brand was born, and the licenses spread from zero to over 12,000,000. He more than any other single person made Creative Commons.
We miss him (though he still yells at me whenever I screw up (or whenever he notices)). And I am forever grateful for the extraordinary work this startup-CEO accomplished.
As described in the previous post, Neeru has taken charge of the Culture Commons project. Mia has taken over his role as GC. And I'm to be the one to build the loyalty and inspiration of the remaining CC team -- though nothing I could ever do would come close to his amazing success.
To those living in, and building, the free world, please join me in thanking this extraordinary leader in whatever way you can.
