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Lawrence Lessig Answers Your Questions 326

Posted by timothy
from the post-on-your-local-church-door dept.
You asked Stanford Law professor, author and general voice of reason Lawrence Lessig some great questions about rights, law, and the electronic world. Lessig has has gotten back with some fittingly thoughtful answers -- some optimistic, some discomfiting, some biting. Read on to find out what he's got to say.

1) The question of harm
by caduguid

In round two of Valenti vs. Lessig a crucial question arose but due to the to-and-fro of debating was only addressed anecdotally. The question was one Valenti posed to you. To paraphrase it roughly: "Who cares? I would like someone to explain to me what harm is being done to the world by Mickey Mouse's copyright being extended twenty years. How does that harm anyone's ability to be creative or incentive to be creative." In the debate you only had the opportunity to present an anecdotal response. (A teacher whose class film projects couldn't be shared due to copyright infringement fears, I think.) Beyond the anecdote, however, a clear answer would be very helpful. We can all see that the copyright extension bargain was one-sided: copyright holders profited and the public gained nothing. We see the inequity in the action, we sense that the fix was in, and we resent it. But resentment over seeming corruption and the copyright holders' good fortune can only take us so far. A clear conception of direct harm to the public might be far more persuasive than the secondary harm of the copyright holders getting a really sweet deal. I kept hoping during the debate that the opportunity would come for you to address the question more fully, but it never did.

Lawrence Lessig:

Exactly right. This was a great weakness in the debate. It has been a weakness of mine for a long time. In my way of looking at the world, the point is a matter of principle, not pragmatics:

(1) Copyright law silences speech. It you want to set my book to song, you need my permission. If you don't have it, the law will banish your song.
(2) If the government wants to silence speech, it needs a very good reason. And if it doesn't have that reason, it should not silence my speech. Period. I shouldn't have to prove how valuable my speech is before I have the right to speak.

Yet this is just what Jack's question demands: Prove your speech would be better than Disney's. I see it the other way round: Prove the government has a good reason to silence my speech.

Now I do believe the government sometimes does have a good reason. And in particular with copyright, I do believe that the aim of copyright law in general is a sufficiently good reason. Copyright law gives authors an incentive to produce. By offering authors a limited monopoly, it supports their creativity. And subject to lots of lawyerly quibbles, I believe this support on balance produces more speech than it silences. The quid-pro-quo (produce speech and we'll give you a limited monopoly) functions, as the Supreme Court has said, as an "engine of free expression."

But that argument just cannot justify extending the terms of existing copyrights. Extending the term for already produced speech can't produce more speech. Even with Hollywood's help, Congress can't make causation go backwards. No matter what we do, Walt will not produce anything more in the past. Giving Disney the right to control speech about Mickey for another 20 years in exchange for nothing is just to silence speech with no compensating pro-speech benefit. And as there is no pro-speech benefit for this speech-supressing regulation, it should be struck under the First Amendment.

The weakness in this argument, however, is that most people think pragmatically, not in principles. The point for them isn't the ideal; the question for them is how much does it really matter. I've not done a great job in showing that. Others have. Check out, for example, the OpenLaw amicus briefs in the Eldred v. Aschroft case, of law professor Dennis Karjala's website.

But if I had a second (or I guess it's a third) chance, I'd say this to Jack:

First, Jack, this is not about Mickey alone. The retrospective extension of copyright reaches to all works presently under copyright (essentially work published after 1922), not just the favored few. Just think practically about what that means:

In 1930, there were 10,027 books published. Today, 174 of those books are still in print. Yet it would be illegal because of copyright law for Michael Hart of Project Gutenberg to take those 9,853 books not in print and make them available on the Internet for free - at least without tracking down the present owners of those copyrights and getting permission.

How hard is that?

Almost impossible. There is no requirement that copyright holders register. To track down the current holder of a copyright from 1930, therefore, would require first determining whether the author was alive, and if not, then which of his or her relatives were alive, and one once you found a relative, who among the relatives received the copyright at issue, and then whether they'd be willing to let this decaying book be digitized. Bottom line: without an army of lawyers, it is impossible to imagine making these books available because of the regulation of copyright.

What justifies this? If the Sonny Bono Copyright Term Extension Act (passed in 1998, adding 20 years to existing copyrights) had not been passed, then all work through 1943 would be now be in the public domain. Project Gutenberg, Eric Eldred's Eldritch Press, Brewster Kahle's Internet Archive could all make this stuff available to others for free or, as Dover Press does, for money. But as it is, because of the law, this stuff will fall into a black hole of legal regulation. As Brewster Kahle said in his Amicus brief to the Supreme Court in the Eldred case, we are at a point where we could put all human knowledge onto the net. Yet legal regulation stops us. Why?

Second, Jack, what about the new work that gets quashed by this perpetual extension? After we argued the Eldred case in the DC Circuit, a woman approached us with a story about a play she had written based on a work published in 1923. She had worked for almost 10 years writing the play, but the copyright holders would not grant her the right to publish or produce it. In 1998, the copyright was to expire; she had received a commitment to produce the play. But after the Sonny Bono Act, the underlying copyright was now extended for 20 more years. Her words were therefore silenced.

What could possibly justify this? The book published in 1923 was not even in print. Why should the government be in the business of threatening new authors in defense of a work that has all but disappeared? How many other creators will look at this reality and, thinking practically, say: "it's just not worth it. The hassle is too great. The uncertainty too high."

There are thousands of examples like this, and many times that that we could never know: At the debate, I told the story of an elementary school that had made films based in part on other film, and how it couldn't even display its work without fear of the lawyers. I told the story of Alice Randall who wrote "The Wind Done Gone," telling the story of "Gone With The Wind" from the perspective of African slaves. The Mitchell Estate told Alice Randall she couldn't publish her book. It took months of high price lawyering before she was granted the right to publish. How many Alice Randall's would simply say, forget it?

Valenti said the Randall example is insignificant. But what makes it insignificant? An author wants to tell a counter story about one of the most influential books of the last 100 years, and she can't do so without the permission of the estate of the original author. This is America, but you need the permission of a lawyer before you can criticize a favored author?

Again, there are many others who are better at this pragmatism stuff. To me, it just feels insulting. You want to tell the Alice Randalls of the world that they need the permission of a lawyer before they can speak? I want you, Jack, to justify that rule. You tell me I have to justify Alice Randall's right to speak? I want to say in response something we lawyers don't say enough: Bullshit.

2) Is Copyright law a sham?
by bw

It seems increasingly appearent to me that Intellectual Property law generally and Copyright law specifically, has become a corrupt instrument whereby campaign finance coffers are filled by metering out favors to large monied special interests. I am basing this on personal observation after having attempted to participate in the process. For example, I participated in several of the Copyright Office requests for public comment that produced easily 10X as many anti-DMCA comments as pro, only to see the Copyright Office ignore what seemed to me to be the clearly expressed objections of actual people in favor of the large corporations who lobbied for the bill. Worse, no serious attempt (in my view) was made to respond to the issues raised by the public. Congress is even less responsive, in my observation.

If and when I conclude that the deck truly is stacked, such that the political process producing copyright regulation is a sham, should I not also conclude that the best course of action is to engage in covert civil disobediance targeted to deprive the specific entities responsible for the corruption of profits? My question is not whether the DMCA is a corrupt law, but rather what moral obligation one has to obey a law that you earnestly believe symbolizes corrupt government.

After all, if push comes to shove, the anti-circumvention provisions are utterly unenforcable (to the point of being a joke) if they are disregarded in ways that do not attract attention. I'm not someone who has decrypted any DVD's or downloaded many MP3's, but I'm wondering what reason there could possibly be not to start.

LL:

I am not against copyright. I think the copyright our framers gave us, for example (a term of 14 years, renewable once; granted only if you register; for limited kinds of work; and protecting a limited range of rights) was a bit weak, but not much. I would favor a somewhat stronger right than they gave us, but for just about as long.

Yet obviously I believe copyright law has gone too far, at least in the digital age. When the power of creativity has been granted to a much wider range of creators because of a change in technology, the law of yesterday no longer makes sense. It must be changed.

The question is how will it be changed?

Disobedience is one technique. It is risky and increasingly costly. But that's not why I would resist disobedience.

The problem I have with disobedience is that it reenforces the Valenti-way of looking at the world. Copyright hoarders demand increasingly extreme rights so that they may exercise almost perfect control over how their content gets used. In response, the civil disobedience movement sends a message that they should have no control over how their content gets used at all. Between perfect control and no control, most would choose perfect control. And hence, we lose.

Disobedience makes sense when you are saying there should be no regulation of the kind you attack. When Martin Luther King led marches in Selma and Birmingham, he was not calling for a limited, or balanced form of segregation. He was calling for no segregation at all.

But we should not be calling for the repeal of all copyright. We should be calling for a balanced and limited form of copyright - much like the right of our framers - that gives artists the right to earn a living, without giving copyright hoarders the power to veto innovation.

We could make progress in demanding that right if those who got it did something. If, for example, slashdot readers weren't such political slugs, something might happen. If more of you did something about this, whether spamming your Congressman, or giving money to those who resist this regulation (like the EFF), then we could resist this extremism.

I am not optimistic, however. Those who get it (e.g., you) are pathetically apolitical. You're proud of your apathy. You're disgusted with people who try to persuade politicians. So am I. But while you do nothing, the future of creativity and innovation is sold in DC - typically to the highest, and most disgusting bidder.

3) The Judicial Branch
by lblack

I just wrote out way too long of a question, so I'm deleting and starting over.

Members of the judiciary are largely unqualified to comment or judge upon issues of a technical nature, simply because their careers do not incorporate a great deal of technical knowledge, and also because they have not sought it (and I don't blame them, probably didn't have time) on their own.

Now, they *are* qualified to comment on matters of criminality, which are supported by a huge amount of precedent, legislation, etc that has been repeatedly modified, challenged, or simply let stand.

However, there are new "crimes" coming into being, called "cybercrimes" by the buzzwordish. Our judges, lacking technical skills or a real awareness of digital culture, are passing judgement in cases that have either very loose or no precedent to be found, or that are the result of new and innovative legislature (see: DMCA).

My concern is that the judges who are making the decisions are the least qualified to do so -- that we won't have a lot of judges with a high awareness of the intricacies involved for several years. However, the judges presently seating are essentially creating a body of law to govern what they do not understand.

My question: How large of a threat will these precedents pose to the continuation or reclamation of freedoms? Will we be able to take back the ground we've alrady lost, or will the intricacies of the legal system vis-a-vis tort & precendent, ensure that we cannot?

LL:

There was a time when I thought that lawyers wouldn't do too much damage. The first Supreme Court case about cyberspace, Reno v. ACLU, striking down the Communications Decency Act of 1996, made it sound as if the constitution required that lawyers be careful before they muck up this free speech haven. Reno put a strong burden on the state to demonstrate that the state's regulation won't do any harm. That made the future sound hopeful.

All that has changed now. As the courts have shifted from porn to copyright, concern for balance, and limits have disappeared. Courts make illegal all sorts of technology because of its "threat" to copyright, without any concern about whether such regulation will threaten cyberspace and free speech generally.

This is, in part, because courts don't understand the technology. But I don't think it's because courts don't know how to code. I think the problem is that courts don't see the connection between certain kinds of technology and legal values. And this is because we've not done a good job in demonstrating the values built into the original architecture of cyberspace: That the Internet embraced a set of values of freedom; that the end-to-end design constitutionalized the idea that the network owner should not be allowed to veto content or applications; that those values produced a world of innovation that otherwise would not have existed. If courts could be made to see this, then we could connect this struggle to ideals they understand.

Sometimes when I read Slashdot debates, I wonder whether you guys get this connection either. The passion that is expended to defend the right to encrypt is wonderful and important. But just as important to the future of freedom is to assure that end-to-end values don't get corrupted by cable companies or network owners. Just as important to the future of freedom is to assure that essential parts of the network not become corrupted by copyright hoarders. And just as important to the future of freedom is to assure that spectrum remain free from the regulation and control of the state.

Yet these debates about freedom get bogged down on these pages. And this leads me to the greatest pessimism: If you guys don't get the importance of neutral and open platforms to innovation and creativity; if you get bogged down in 20th century debates about libertarianism and property rights; if you can't see how the .commons was critical to the .com revolution, then what do expect from judges?

You guys (not Howard Roark) built an architecture of value. Until you can begin to talk about those values, and translate them for others, courts and policy makers generally will never get it.

4) Leverage the knowledge of technical community
by 2Bits
A lot of obscure laws have been passed, and the majority of the population are not even aware of their existence. However, the technical community is watching the legislation quite closely. And we seem to understand the potential impact and risk on freedom and privacy. But the technical community has a very small influence on politics, and seems almost clueless in "playing political games."

How can we leverage the knowledge of the community to help educate politicians and the general population in terms of technologies, and the impact of the proposed bills? Briefly, how can we help better, not just sending letters to congress people or senators?

LL:

This is a great question. We need translators. We need to translate the values of the network into terms that nontechnical people get. And we need to watch for changes in the architecture or mix of technologies layered into the network, and raise warnings about how those changes will alter the environment for innovation and creativity. As one of my heroes in the law, James Boyle, puts it, we need an environmentalism for the Internet. You are the environmental experts. You can credibly show the world how changes in the ecology of the Internet will destroy the environment for creativity, innovation, and freedom that it produced.

Will you do that? Again, I am skeptical. Rather than trying to focus this debate, or agree on ways to make others understand, you guys immediately turn these questions into irrelevant bickerings. When someone reported that I had written a book described as the "Silent Spring" of the Internet, that opened up a thread about whether in fact DDT had harmed the environment. Someday, when freedom is gone, and all we've got is the right to whisper our thoughts to those closest to us, our children will look back and ask, why did we think we had the luxury to quibble?

But if you don't want to become translators, if you don't want to write environmental impact statements, if you don't want to try to convince the North in California that if it gets taken over by the South, freedom and innovation ends, then you could do as Torvalds has recommended: give money to those who are fighting the battle, in particular, EFF. I'm on the board of EFF, so blissfully biased about to whom. But whether EFF or someone else, follow Torvalds and the other christ-figures in history: Tithe. Take the cost of Internet access (whether you pay it or not) for one year; send 10% to an organization fighting for your freedom.

5) file sharing and copyright law
by stevenj

What do you think of OpenNap, Gnutella, Freenet, Morphius, and similar file-sharing systems? Do you think it is legal for a person to distribute unauthorized copies of a copyrighted recording or video that way, especially if no commercial entity is involved (e.g. excluding Napster or Morphius)? Should it be legal? (Should it matter how many copies you distribute, or to whom?)

If you think it should not be legal, what remedies should the law consider, since these systems can have significant non-infringing uses as well?

LL:

I support these technologies. More importantly, I support the right of innovators to develop these technologies. But I don't support copyright violations using these technologies.

You'd think this would be an easy distinction to understand: We live in a country where 10 children are killed by hand guns every day. But Smith and Wesson doesn't worry that the FBI will come arrest them because someone used their technology to commit a crime. The law targets illegal uses of technologies, not the technologies - at least where there is a legitimate and legal use of that technology. Yet because of our extremism when it comes to copyright law, we ban technologies that threaten copyright interests whether or not they have legitimate, independent uses.

6) Microsoft settlements?
by Lumpish Scholar

What is your take on the proposed settlements in the antitrust and civil Microsoft cases? To most Slashdotters, the former seems like a slap on the wrist, the latter like a a punishment turned into a reward (increasing dominance of the U.S. education market). Is there something we're missing?

LL:

The short answer is this: the settlement is fatally flawed. There is no effective enforcement mechanism to assure that Microsoft lives up to the terms of the decree. The "technical committee" does not have the power to interpret the decree. The only entity that can interpret the decree is a federal court. We've seen how well that works: The last decree (signed in 1994) was the subject of the case that began in 1997. It took the courts 8 months to work out the meaning of 20 words.

The decree would be close-to-fixed if it had an effective special master who could monitor and enforce the decree effectively (and no, I'm not interested.) It still wouldn't be a perfect decree - I like the nine states' proposed alternative better - but at least it would have a chance.

But though I've been attacked by Microsoft as strongly as anyone, and though I completely agree with the Court of Appeals that Microsoft violated the antitrust laws, I do believe something that will not endear me to many of you: As I said in my testimony, I don't believe Microsoft is the greatest threat to the Internet. And indeed (and more controversially), there's at least one understanding of how the .NET strategy gets implemented that would reenforce the best of the Internet against the threats posed by the Time Warners of the world and cable interests. On at least one understanding of .NET, .NET would reenforce an end-to-end network. It would resist "intelligence" within the network. And except for the open source and free software movements, it is about the only strategy out there that could produce real freedom.

My claim is not that Microsoft will adopt that strategy on its own. I am not arguing we should trust the company. But I do think that an effective remedy could push Microsoft in the direction of something good, and if it did, the company could become an ally, not an enemy.

I know there are many who resist this view. Many believe MSFT is the devil. I'm not one of those people. And my concern is that if we obsess about old wars, we won't understand the nature of the new.

7) Doctrine of First Sale Dead?
by burris

Back near the turn of the last century, book publishers printed contracts on their books, limiting the ability of the customer to resell or lend his purchases. This practice was halted by the U.S. Supreme court and the consumers right to do what they wish with legitimately purchased copies (with certain limited exceptions) was eventually codified in the US code as part of the '76 Copyright Act.

Given that software is a work of authorship protected by Copyright law, how is it that software publishers get away with these old tricks of printing restrictive contracts on their works, claiming assent simply by using the software, denying people their rights under Copyright law?

LL:

They get away with it because their lobbyists have convinced Congress to change the law. So, for example, the first sale doctrine has been repealed for some content. And it is not being supported with other content.

The history is important, however, to remind people about the balance that copyright law has typically tried to draw. We have never until now understood the rights of copyright to be the right of the author (or publisher) to exercise perfect control over copyrighted material. The framers of our constitution gave copyright holders a tiny set of rights; this is not because the framers we communists. We need, as a culture, to remember that copyright is a form of state regulation. And we need, as political culture, to become, with respect to this regulation, a bit more Republican: Where is the regulatory impact statement that shows that this form of regulation does any good?

8) IP Laws of the Future
by Catiline

Rather than ask about current copyright/patent laws, or pending ones, I would like to know what you think the ideal Intellectual Property laws are (assume you could rewrite them as you wish). Also, what sort of international agreements would have to be passed alongside this?

LL:

In my book I argue for a number of changes. They include a much more restrictive term - basically 5 year renewable terms, up to a maximum of 75 years. For software, the term would be even shorter, and conditioned upon the software author depositing his or her source code with the copyright office, to be open sourced upon the expiration of the copyright.

More importantly, I think we need to restrict the scope of "derivative rights" more than we do today. Copyright owners deserve to be paid for the use of their work; they should not be allowed to veto follow on work that builds on theirs.

Finally, during a time of technological transition, we need a strong set of compulsory rights so that new content producers and distributors can get access to material to enable these new businesses to take off. Compulsory rights require that the author of the original work get paid, but the rate is either set by the law, or set by a panel to be relatively low. This will give artists more than they would have had, had there been no Internet. But it will assure that innovators can build out the future of the Internet without the control of dinosaur industries.

9) Patents, Copyright and the law community
by gdyas

Dr. Lessig,

Looking from the outside in on the legal community's response or lack thereof to the constitutionality and legal basis of recent court rulings (Napster, Eric Corley), the DMCA/SSCA, etc, I see very few lawyers taking a stand against this -- there's mostly a massive shrug. There's the ACLU, the EFF of which you're a part, and Jessica Litman, and that's all I see trying to do something about the co-opting of copyright and patent lawmaking by corporations through appeals based on the interest of business, lobbyists' dealmaking, and outright graft. By and large however there seems to be little interest even amongst lawyers and congressmen about the arcana of copyright and patent law, and thus it's left to such companies and libraries because they're the only ones who both have power and care about it. Has trying to fight this caused conflict in your professional work? Is it lonely being a "vox clamantis in deserto"? What's your game plan for beating these guys back, or do you have one? There's a certain sadness and resignation in both your and Litman's writing that's very disencouraging that would lead me to think that even our flag-bearers feel there's little hope at this point.

LL:

There are more of us than you think, but certainly not enough. Again, check out the OpenLaw page, and you'll see over 50 of the most active resisters to this expansion of copyright working together to overturn the Sonny Bono Act. These scholars and lawyer represent a critically important resistance.

That said, we still need more help. I produce lawyers for a living; I watch as many try to find jobs to do good, but find the only available work is within the system. People who understand the importance of freedom and see the importance of protecting the future of freedom on the net need to support institutions that fight for that freedom. Pam Samuelson of Berkeley, and her husband, Bob Glushko, have given an extraordinary amount of money to support clinics at law schools around the country. At Stanford, we also have a clinic that defends hackers (soon to be known officially as "terrorists"). But again, I think EFF has been the most important player in this area.

10) Will the extension of copyright continue?
by Artifice_Eternity

Do you think that the gradual increases in the length of time that works can remain copyrighted (most recently the "Mickey Mouse Protection Act" of the 1990s) will continue every time that the media companies feel that they are about to lose control of some of their "intellectual property"?

Or do you think that the public interest will reassert itself and hold or even turn back some of these copyright extensions?

When a work's copyright is extended, one person (the author or the corporation that owns it) benefits. But when its copyright expires, everyone benefits by being able to copy, modify, expand on and extend it. Can we convince lawmakers with this kind of social and economic argument?

LL:

Exactly right. When Congress passed the Sonny Bono Copyright Term Extension Act (CTEA), which we've renamed the "Mickey Mouse Protection Act," we filed a law suit on behalf of Eric Eldred and others. Eldred had threatened civil disobedience. He runs a web based archive of public domain works, and promised to publish works in violation of the CTEA. We convinced him that jail was ugly and that courts may do the work better. We've been litigating the case now since 1998, and have convinced at least two federal judges that the law is unconstitutional. Tight this moment I should be writing a reply to the government's argument against the Supreme Court reviewing the case. That reply is due in a week.

If we get to the Supreme Court, I am certain that we will win. This is not a left/right issue. The conservatives on the Court will look at the framers' constitution - which requires that copyrights be granted for "limited times" - and see that the current practice of Congress, repeatedly extending the term of existing copyrights (11 times in the last 40 years) makes a mockery of the framers' plan. And the liberals will look at the effect of these never ending copyrights on free speech, and conclude that Congress is not justified in this regulation of speech. The Supreme Court doesn't give a hoot about Hollywood; they will follow the law.

It is not enough, however, to win in the Supreme Court. Ordinary people need to rediscover the importance of the public domain to creativity. The Internet could teach this - Brewster's Internet Archive, for example, is a great demonstration of the value of the public domain. But it will take real political action by real people (i.e., not lawyers) to get Congress to recognize what our framers understood.

11) Cyberspace Amendment
by kzinti

Many years ago, in the early days of the WWW, Laurence Tribe proposed a "Cyberspace Amendment" to the US Constitution that would explicitly extend all the rights and freedoms of the Constitution to all forms of speech, regardless of the medium. The idea was brought to many of us geeks in a Dr. Dobbs article by Michael Swaine. I know what many of my fellow Slashdotters opinions probably are, but I'd like to have yours: how have our Constitutional protections held up on the Internet, in e-mail, and in WWW publishing? Do we still need a Cyberspace amendment -- or do we perhaps need it now more than ever?

LL:

Professor Tribe's article was typically Tribe: Way ahead of its time, and right. But the sad fact is that our liberties have not been eroded because the protections in cyberspace are weak. Our liberties are weak because courts have eroded constitutional protections generally.

The more I'm in this battle, the less I believe that constitutional law on its own can solve the problem. If Americans can't see the value of freedom without the help of lawyers, then we don't deserve freedom. We should be working to help Americans recognize freedom again.

12) Activism by coding
by melquiades

It seems like a lot of judges who face abstract technology questions -- code as speech, DMCA, etc. -- just don't get it. And can we really blame them? Technology is complicated; can we expect every judge to be an uberhacker?

Perhaps it would be helpful to have some bright programmers set up some concrete examples for judges to consider, which clarify the problems we all see, and help judges refine their intuitions about code and digital information.

For example, to further the "code is protected speech" cause, we could create a full-fledged programming language which reads as plain English, then use it to implement a copy protection circumvention program (DeCSS or the like). This raises all sort of interesting questions: it's English and code; is it protected under the first amendment? Presumably it was before it could be run as a program, so does my inventing a programming language change the status of existing speech? If it's protected as only source code, is an interpreter for that language illegal? Is bundling the English script with the interpreter illegal? And so forth ...

... but that's a very thorny example. Are there examples of this kind that we programmers should be producing -- software that makes these theoretical arguments more concrete? Is there anything in this spirit that won't just confuse and/or piss off a judge? What examples do our causes need? We're ready to implement them!

LL:

Again a great question. The answer is more communication between lawyers and technologists. There is ignorance among lawyers and judges about technology no doubt. But there is also ignorance among technologists about the law.

The "code is speech" debate is a perfect example. Obviously, this is an important victory to have -- and indeed, the one good thing that came out of the 2600 appeal was a clear affirmation by the Second Circuit that "code is speech." But among constitutional lawyers, that "code is speech" is not the hard question. The hard question comes next: even if it is speech, how much power does the government have to regulate it. For just because "code is speech," it doesn't follow, under standard First Amendment law, that the government can't regulate code. Think again about copyright law. Obviously, what copyright law regulates is speech. But even though speech, under some circumstances the state can regulate it.

I think the place where technologists could do the most good is by showing the rest of the world something much more fundamental about the network. Not just how code is speech, but also:

(1) how the architecture of the Internet built a set of values,
(2) how those values are fundamentally linked to the most important freedoms in our tradition, and
(3) how changes in that architecture of the net could undermine those values.

Find ways to demonstrate how the architecture built a commons, and how that commons induced innovation: That's the stuff that lawyers, and politicians, don't get.

13) International Freedom
by bfree

We seem to be living in "Interesting Times". The events of 911 have given law-makers the impetus to have acts passed which would have been at the very least debated for a lot longer pre 911. Up until now the Internet has been an incredibly open network with minimalist intervention and legislation from individual countries governments (a few notable exceptions). It seems as if we are going to enter a new legal phase for the internet where legislators in many countries will try to enact and apply laws to take control of this wild beast. Each countries individual efforts will hamper their own citizens without overly effecting the rest of the net.

My question is how much of the above do you disagree with and why? And what body (UN, w3.org, wipo, coporation of ISPs, Microsoft) do you forsee holding the international legal legislatory responsibility for the net at large in 1/5/10/25/50 years time?

LL:

I don't disagree with any part of your description. That was the argument I tried to make in my first book - that the original freedom of the Internet could be changed by relatively small changes in the architecture, and we should expect governments to work hard to effect those changes. I made a bunch of dark predictions in that book. History has proven I was not pessimistic enough.

I don't know what body can resist these changes. I would have hoped the IETF would play a bigger role. And W3 too should see what's at stake. But the fact is that the strongest advocates for freedom are overwhelmed by those who have the most to lose from freedom. The key to our success would be if a strong commercial actor became deeply invested in freedom. Except for its patents, I would have said IBM was that commercial actor. But we'll need more than Big Blue.

14) DMCA
by Amazing Quantum Man

What, in your opinion, are the chances of getting the DMCA declared unconstitutional?

Given the recent court defeats in both the Felten and 2600 cases, do we even have a chance?

LL:

The DMCA as a whole won't be struck down - ever. But I continue to believe that at least the parts that disable the use and deployment of technologies to protect traditional fair use will eventually fall. At least they will fall if litigation about them could continue. But notice again: the only group out there supporting this litigation (Felten and 2600) is EFF, and EFF's resources are, surprise surprise, limited.

Skeptical on both, though as I've said, I do think there is a way that .NET could get implemented that would reenforce freedom on the Internet. That's not to say Microsoft would on its own follow that path. But it is important to see that if it did follow that path, its architecture could reenforce freedom.

The same could be said about the Liberty Alliance. Nice title, but Sun has never quite resolved itself to the idea of open and free networks, so I'm not convinced Liberty is what it calls itself. I do think we as a community need to develop a much better authentication architecture - one that is not controlled by any one single, or group of companies, but instead a platform upon which authentication services could be built. I hear whispers from Red Hat that they would be interested in such a future. I hope that's true, but its too soon to tell.

The dangers in both .NET and Liberty could be better resisted if we would only develop a consistent and clear message about the importance of neutral platforms to innovation and freedom. When we built the highway system, we didn't say to GM: "if you build the highways for us, you can build them so that GM trucks run better than Ford trucks." When we needed a passport system, we didn't tell Chase Manhattan bank that they could develop the passport system in exchange for a piece of every transaction. In both cases, there was a recognition of the importance of neutral, commons-like, infrastructures upon which others could build neutrally.

We need to relearn this lesson - in general, and in the context of the Internet. You guys could help teach that lesson. Indeed, only technologists have the credibility to speak reason to this idiot power. But that will require something more than a life of quibbling on Slashdot. And so far, you've not shown you're up to very much more.

15) .NET-enabled futures?
by Nikau

What is your opinion on things like Microsoft's .NET or the Liberty Alliance (I believe that's what it's called - the one being developed by AOL and other companies to counter .NET)? Do you see these as a potential problem in terms of a free online world?

LL: p>Skeptical on both, though as I've said, I do think there is a way that .NET could get implemented that would reenforce freedom on the Internet. That's not to say Microsoft would on its own follow that path. But it is important to see that if it did follow that path, its architecture could reenforce freedom.

The same could be said about the Liberty Alliance. Nice title, but Sun has never quite resolved itself to the idea of open and free networks, so I'm not convinced Liberty is what it calls itself. I do think we as a community need to develop a much better authentication architecture - one that is not controlled by any one single, or group of companies, but instead a platform upon which authentication services could be built. I hear whispers from Red Hat that they would be interested in such a future. I hope that's true, but its too soon to tell.

The dangers in both .NET and Liberty could be better resisted if we would only develop a consistent and clear message about the importance of neutral platforms to innovation and freedom. When we built the highway system, we didn't say to GM: "if you build the highways for us, you can build them so that GM trucks run better than Ford trucks." When we needed a passport system, we didn't tell Chase Manhattan bank that they could develop the passport system in exchange for a piece of every transaction. In both cases, there was a recognition of the importance of neutral, commons-like, infrastructures upon which others could build neutrally.

We need to relearn this lesson - in general, and in the context of the Internet. You guys could help teach that lesson. Indeed, only technologists have the credibility to speak reason to this idiot power. But that will require something more than a life of quibbling on Slashdot. And so far, you've not shown you're up to very much more.

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Lawrence Lessig Answers Your Questions

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  • by joshjs (533522)
    "The law targets illegal uses of technologies, not the technologies - at least where there is a legitimate and legal use of that technology."

    Does anybody in any position of authority know this?!?!?
    • Yeah - my thoughts too!
      The comment below is a little disconcerting, because we're dangerously close to where a Smith & Wesson *will* become worried about govt. holding them liable if someone kills a child with one of their handguns!

      The problem is much larger than people not differentiating when it comes to computer technology vs. illegal use of said technology. This refusal to differentiate happens with even simple, relatively low-technology products and services!

      As a whole, we have a need to shift blame. AKA. It's currently understood that if you do a poor job of shoveling snow and ice off of your driveway, and someone comes along and slips/falls on it, you are responsible if they sue you. Since it's *your* property and they chose to walk on it without your consent or invitation, I fail to see how this makes any logical sense! When this does make sense to lawyers and judges though, how can we move beyond that to encryption and programming issues??

      "You'd think this would be an easy distinction to understand: We live in a country where 10 children are killed by hand guns every day. But Smith and Wesson doesn't worry that the FBI will come arrest them because someone used their technology to commit a crime."
      • actually smith & wesson is playing both sides of the fence. consider their lobbying for "child protections" on guns that helped them get exclusive contracts with many government agencies and police forces

  • Just a comment, looks like the answers to 14 and 15 got mixed together by accident. I assume the answer to 14 was the first paragraph only, since the rest was referring to authentication and .NET.

  • ...because I would LOVE to see Lawrence Lessig appointed!



    (I'm not advocating any particular way of opening a vacancy on the Court, mind you... Perhaps Scalia would be so kind as to retire.)

    • I suspect that, should any of this come to SCOTUS, that Scalia would actually be friendly to what we're trying to do. He's a strict constructionist.

      I'm not sure friendly is the right word, but I can't think of the proper word at this moment.
    • That's really amusing, since Lessig used to clerk for Scalia, and conciders him a mentor.

      Scalia is an aid to our cause anyway. As a strict constructionist, I would expect him to take one look at "for limited times" in the Consitution, and throw current copyright law out on it's ear.
  • the highest bidder (Score:2, Interesting)

    by Bandito (134369)
    I am not optimistic, however. Those who get it (e.g., you) are pathetically apolitical. You're proud of your apathy. You're disgusted with people who try to persuade politicians. So am I. But while you do nothing, the future of creativity and innovation is sold in DC - typically to the highest, and most disgusting bidder.

    This quote seems to contradict itself. We can bitch and moan to Congress about our disagreement with copyright, but face it, those who get it are by far in the minority. Even if a good lot of us complained, the future of creativity and innovation is still sold in DC - typically to the highest, and most disgusting bidder because that bid still outweighs the voices of the few.
    • by duffbeer703 (177751) on Friday December 21, 2001 @03:37PM (#2738612)
      Despite your disdain for the political system, the United States is a democratic republic.

      When Senators hear alot of complaints about an issue, they immediately see that their jobs are in jeopardy and act accordingly.

      Ever wonder why the elderly get so many benefits (like Medicare, SS, etc)???

      Because organizations like the AARP are loud and vocal in the pursuit of their interests.
      • Ever wonder why the elderly get so many benefits (like Medicare, SS, etc)??? Because organizations like the AARP are loud and vocal in the pursuit of their interests.

        And well-funded. Sure, they have a lot of votes (although I very much doubt the AARP can deliver their whole membership as a bloc -- old people don't have the blacks-vote-90%-Democrat thing going) but they also have a lot of money to lobby with.

        The EFF may be able to deliver some votes, but it can hardly afford to wine and dine Congress in true lobbyist style.

        • by alexhmit01 (104757) on Friday December 21, 2001 @07:39PM (#2739692)
          The black lobby sucks because it is 90% vote Democratic. The Democratic party plays lip service to the black caucus and other black special interest groups.

          Hell, the Jewish population, maybe 1/6th the size of the Black population, has as much if not more influence. The Jewish population votes in larger numbers, and splits (I think around 65%-35% Democratic). The Democratic party has to pay attention or a portion swinging to the GOP can hurt them in New York and Florida because of reasonable sized Jewish populations.

          You don't want to be chronically Party X. You want to have money to "participate" in government, and have a voting block that you can swing.

          Politicians (particularly in my native state of Florida) cater to the AARP because it splits. They know that if the elderly split 50-50, they can ignore them if they don't piss them off. Get the AARP pissed off and see them fo 80%-20% for your opponent, and you are out of a job.

          If a Republican pisses off black voters, they aren't hurt much. The only way for black groups to affect things is to get out the vote. Jeb Bush alienated the black community. Voting Democratic didn't matter. Getting the black vote out in Florida however, nearly cost his brother the White House. (Blacks are roughly 8% of Florida's poplation, normally around 6% of the vote, and something like 12% of the 2000 presidential race).

          Being a split group that will swing is FAR more powerful. Without a get out the vote drive (the elderly vote reliably as is), the AARP is STILL able to swing things because they have potential power.

          Alex
  • by jd (1658) <imipak&yahoo,com> on Friday December 21, 2001 @03:36PM (#2738600) Homepage Journal
    Any chance Slashdot could hire him as a guest article writer, from time to time? This is a guy who knows what he thinks& feels, and knows how to put that on paper. A VERY rare beast, indeed! (Mayhap, rarer than the new squiddy thing that's been found. Though I suspect the new squiddy thing might make a more powerful presence in court, versus Microsoft. Especially if it eats the defendents.)
    • by EricWright (16803) on Friday December 21, 2001 @03:59PM (#2738706) Journal
      Maybe you haven't noticed, but Lessig's work is far more important than writing articles for an online community. I'd rather see him continue his work with the EFF, argue cases before the Supreme Court, and get some of the more ridiculous laws off the books.

      THAT is doing something worthwhile. Let's not reduce him to the same level as JonKatz...

      Eric
      • Maybe, maybe not. (Score:5, Insightful)

        by nyet (19118) on Friday December 21, 2001 @04:23PM (#2738811) Homepage
        The whole point to having a regular contributor to /. is to spur not only debate but action. Since nobody takes Katz seriously, all that results from his writings is debate (and usually not very insightful debate at that). Maybe somebody like Lessig can help crystallize the /. community into getting real grassroots political leverage.

        Personally, I'm doubtful - too many of us are frustrated, cynical, jaded, and face it, just plain lazy (myself included). We feel powerless and disenfranchised so not only do we stew in apathy, but we also express views which remain inaccessible and incomprehensible to the type of optimistic, motivated people who form the base of a successful movement.

        We need somebody who can translate our whining into clever 30 second sound bytes for mass consumption. And there is NO way Katz is up to that. Maybe Lessig is.

        • Now this gives me an idea for something that we can do. You've put it in an excellent form: 30-second sound bites are the major weapon that non-corporations have available today.



          So let's organize a Sound Bite For Freedom contest. Everyone tries to come up with the 30-second sound bite that can most forcefully and memorably explain what is wrong with the DMCA, the DeCSS case, et cetera.



          I'll try to start by adapting a salient point of Professor Lessig's:



          Congress sold thousands of years of ownership to the corporations, of works that belonged to the public. Now -- who got paid, in exchange for that? It wasn't the public!


          And here's where we put the contentious nature of Slashdot to work for us. Don't like my sound bite? Do better!

        • by Ungrounded Lightning (62228) on Saturday December 22, 2001 @05:32PM (#2742133) Journal
          The whole point to having a regular contributor to /. is to spur not only debate but action. ... Maybe somebody like Lessig can help crystallize the /. community into getting real grassroots political leverage.

          Personally, I'm doubtful - too many of us are frustrated, cynical, jaded, and face it, just plain lazy ... We feel powerless and disenfranchised so ... we stew in apathy


          One source of the perception of apathy is that the opportunities to DO something are not effectively made public. If you don't spend all your time digging through obscure documents (or hire a lobbiest to do it FOR you), you don't know what the congress critters or regulators are up to.

          Finding out on your own about legislation or rules that might affect you is SEVERAL full-time jobs. (Hell - they pass laws and impose regulations faster than a man can read, and the legislature doesn't even read most of what it votes on.) This stuff gets buried so deep (often deliberately) that even major corporations with entire DEPARTMENTS watching for things that affect them sometimes miss it. Responding to this crap is IMPORTANT. But people who have real work to do - and even those who don't - just can't spend enough time to hunt it down.

          And that's where organizations like the EFF can come in.

          I note that a number of Slashdot people (myself included) filed comments on DCMA rulemaking with the copyright office in response to a posting (within a day or so of the cutoff) that the opportunity existed.

          When "action" consists of demonstrating that some people out there have an opinion, and the message can be sent by phone, email, or snail mail, the Slashdot Effect can be put to effective use. Combine that with a TIMELY article telling where to submit comments and we can flood them out.

          I emphasize TIMELY because a day's notice will yeild a bunch of flames and a few well-thought-out letters, in a burst that makes it obvious they're all from a single community. Notice near the start of a comment period and a reminder a few days from the end will produce a large yeild of well-thought and well-researched comments.

          This is not just speculation. This is exactly what the pro-gun movement does. The NRA (with membership second only to ARP) and its lobbying arm the ILA gets the press. But it is only one of a number of groups (GOA, Members' Councils, state orgs like CRPA, JPFO, etc.) which send out "legislative alerts" to their members when something is discovered in time to react. (They also interview and rate candidates come election time and make their voting records known.)

          So instead of moaning about how apathetic the working nerds are (demotivating them further), perhaps EFF might put their staff to work to act as our early warning system, and SUBMIT SHORT ARTICLES to Slashdot when there are opportunities available for an avalanch of electronic or paper mail and phone calls. (Many of us have printers, right? We can pretty much ALL send a handwritten, hand-addressed letter, and those are even MORE effective.)

          I'm sure the Slashdot editors would be happy to post such notices. They even have categories for them! Legislative and regulatory rulemaking on IP and other aspects of internet and programming freedom are PRIME examples of "News for Nerds, Stuff that Matters!". How could they resist a couple EFF staffers acting as investigative reporters - for free?

          With EFF (and others) to dig up the info, Slashdot (and others) to spread the word in a TIMELY fashion and serve as dissusion and planning venues, and HORDES of internet-connected VOTERS to flood the critters with mail, we could turn a lot of this around.

          But nothing will happen unless those hordes have the necessary INFORMATION to act.

          And that's what the computer age is about, isn't it?
      • No. His job is creating more lawyers. Fabulous, just what we needed.

        And I don't care to be called politically apathetic and proud of it. I maintain a healthy interest in and activity level in politics in spite of all his lawyerly offspring clogging the political arteries. I'm not going into detail, but I certainly fall into the "above average" politically active camp.

        But the most important thing you can do to support freedom is to exercise it loudly and often-- historically *nothing* else has been as effective in making changes. And he says he advised Eric Eldred *not* to exercise his freedom by disobeying a flatly unjust law. Since 1998 they've been legislating on this matter-- that's great when it comes to law school graduates getting paid. But it's a terrible precedent to set in terms of appropriate response.

        Is that what he'll advise all of us, if something like the SSSCA gets passed and we can no longer distribute Linux legally? Just wait until the lawyers settle it? And by the way keep donating, resources are sparse?

        (And before you flame, I am a card carrying member of the ACLU, so I *do* donate to free speech causes)
    • Better yet, could any organization sponsor a tour of townhall meetings across America, to educate the general population what is going on? And have Larry Lessig explains in the "easily comprehensible english terms"?

      I'll donate $100 to support this tour.

    • Aieee! Opposing council's tentacles have become entangled on me, and he seems to be having trouble releasing me!
  • by vkg (158234) on Friday December 21, 2001 @03:36PM (#2738605) Homepage
    Mebbe these DRM systems will actually help.

    No, really, think about it.

    If you're a small artist, and DRM actually works, you can put a couple of your songs up on Napster-clones with the copy bits set to "Copy Forever".

    Then put the rest of the album up with "Pay me for a licence".

    People who want to distribute for free can, as can people who want to police. What's the problem with this?

    I think it may just be building a technical infrastructure for trust.

    Vinay

    PS: and no, I don't like the mandating of DRM - but I think it itself may be savable.
    • by Anonymous Coward on Friday December 21, 2001 @04:19PM (#2738779)
      > If you're a small artist, and DRM actually works, you can put a couple of your songs up on
      > Napster-clones with the copy bits set to "Copy Forever".

      You make the mistake of assuming that small artists will have access to the DRM systems.

      more likely, the 'master keys' to the DRM systems will belong to a handful of corporations, who will get to decide who can and cannot publish using DRM.

      the small artist will get the choice: either sign your rights over to us in exchange for .01% of the revenues (i.e. the existing situation), or you can't create any content that will play in any DRM-enabled systems.

      people who create content without using DRM will of course be classified under the law as "pirates", all non-DRM content will be assumed to be an illegal copy of something, and will be automatically deleted by your DRM-enabled computer in the small chance that you are able to evade the United State's DRM firewall and download it from Cuba.
      • Ok, where's your evidence for this?

        Even if a DRM licence costs $50K, hell, even if it's $100K, companies or groups of artists can buy a key and then syndicate the service: you send in your work and an affadavit that it's yours, they charge you some cash to sign it, and off it goes into the content pool.

        Don't knock it: widespread deployment of cryptographic systems may require government mandate.

        Vinay
  • The last two answers (Score:3, Informative)

    by epepke (462220) on Friday December 21, 2001 @03:41PM (#2738628)

    The last two answers seem exactly the same. There's also a stray right angle bracket in the second which suggests an HTML goof.

  • by mttlg (174815) on Friday December 21, 2001 @03:47PM (#2738658) Homepage Journal

    In 1930, there were 10,027 books published. Today, 174 of those books are still in print. Yet it would be illegal because of copyright law for Michael Hart of Project Gutenberg to take those 9,853 books not in print and make them available on the Internet for free - at least without tracking down the present owners of those copyrights and getting permission.

    This is one of the most significant arguments for reasonable copyright terms, but it should not be forgotten that this goes far beyond books alone. What about all of the films from this era that are quickly disappearing because the copyright holders either don't care or don't even know that they hold the copyright? What about songs about our heritage or songs that have become part of our culture (Happy Birthday comes to mind)? We are in the information age, when our very culture is shifting toward a distributed electronic form, but key elements that either have become fundamental parts of our culture or are forgotten elements of previous cultures are being blocked for no reason other than corporate greed. At the very least, copyright should expire if the work is not being produced after a set time period (10-20 years seems reasonable). Ideally, everything should fall into the public domain after a set period of time (half a lifetime or so should be sufficient). Otherwise, we run the risk of becoming a cultureless people at the mercy of corporate copyright holders (if we aren't already).

    • by Transwarp Conduit (398219) on Friday December 21, 2001 @04:34PM (#2738871)
      At the very least, copyright should expire if the work is not being produced after a set time period (10-20 years seems reasonable).

      In other words, give the concept of "abandonware" a legal, clearly-defined standing? Now that's an idea worth pursuing, especially if the terms were codified in such a way as to take into account the different rates at which different works become "obsolete." (For example, I think a 20-year "out of print" period is about right for books, movies, music, etc., while I think a 5-year period would be more appropriate for computer software.)

      I wouldn't say that an "abandoned" work should become entirely public-domain right away, though. This could raise the spectre of a publishing house (movie studio, record label, etc.) only putting out a single printing of a work, waiting long enough for the abandonware term to expire, then "re-issuing" it without having to pay the author any further royalties. (This would, for example, allow MGM to drag their heels on a reissue of Nelvana's "Rock and Rule" for a couple more years, then issue it as soon as it becomes "abandoned" without paying Nelvana a dime.)

      I would suggest, rather, than when a work becomes "abandonware", the copyright holder only loses the right to control non-profit copying and distribution of the work. Thus, if MGM (to refer to the example above) is still dragging their heels on a Rock & Rule DVD release after 2003, under my proposed "abandonware" scheme I could legally make DVD-R copies from my laserdisc and give them away; such copying would only be illegal if I tried to make a profit off of it. It would also, in the case of Project Gutenberg, allow for the not-for-profit digitizing and distribution of those out-of-print books, but would allow the original author to keep his right to sue anyone who tried to plagiarize his work and claim it as their own.

      Seems like a fair balance to me... what do you think?
      • by rodgerd (402) on Friday December 21, 2001 @05:10PM (#2739032) Homepage
        Unfortunately, publishers already have experience in defeating any abandonware type clause; you will find (if you like books by older authors) that many, many volumes in the 50s and 60s, for example, are listed as in-print, but unobtainable in practise; this is because it used to be common that book publishers would sign an exclusive license with a writer with a proviso that the license would expire if the publisher allowed a work to go out of print, so that the author could negotiate with another publisher.

        Fair enough, right?

        In practise, though, publishers claim books are in print; perhaps they even fulfill one or two orders per year, but they are not actually printing those books - they may have a small stockpile somewhere. Unfortunately, it's virtually impossible for the author to prove this is just a ploy, and it's also impossible for fans of the author to get the damn books.

        Much the same thing would happen under the abandonware clause - publishers would make it prohibitively hard to get work they didn't feel like releasing, but claim it was still technically being published.

        Also, one other weakness in this: much of the old work is available of media which is scarce; it's unlikely such a provision would have much force if, for example, you wanted a movie but the publisher refused to release the only remaining prints (you're welcome to the copyright, you just can't get a copy).
        • In practise, though, publishers claim books are in print; perhaps they even fulfill one or two orders per year, but they are not actually printing those books - they may have a small stockpile somewhere. Unfortunately, it's virtually impossible for the author to prove this is just a ploy, and it's also impossible for fans of the author to get the damn books.

          In this digital age, that shouldn't be a problem - a product (book, movie, software) should be considered out of print if an individual customer can't order it from the publisher or a distributor in some format at or below the original price, adjusted for inflation. When a company decides they no longer wants to print paper books/box art/manuals, they then should be required to provide downloads or bare-bones CD/DVDs, or allow copyright to lapse.
    • And imagine, for the last decade or so, we have had the ability to basically archive *everything* of cultural value that crosses the net. In the future, even more things will be digital. If we don't reform copyright, copyright holders will not only be able to snuff out *new* creativity...they will be able to completely destroy rich records of history. Imagine if the entire contents of usenet were just thrown away or "lost" to history. What an absolute shame.
  • by adamy (78406) on Friday December 21, 2001 @03:49PM (#2738661) Homepage Journal
    I find it interesting to hear him call for things like a neutral commons, and yet criticize the Slashdot audience for not working together for political ends. Slashdot is a forum, and as such, courts dissenting views. If the Slashdot audience was able to unite and force a politician to support a particular view, we would be nothing but a mob, swayed by whomever could give the best speech.

    Slashdot's audience is very non-monolithic. While the postings are usually anit-microsoft, obviously some people who are very pro-microsoft read on a regular basis, and feel compelled to post. Granted that good chunk of people wil post an opposing view to anything just to still debate. But this is a place for people to voice differeing opinions.

    Not everyone that reads Slashdot is tech savvy, and those that are understand best the portions of technology that they use: I am a programmer, and not a very good system administrator. I understand business software a hell of a lot better than I understand embedded programming.

    I enjoy the debates on Slashdot. I enjoy learning an opposing point of view to somthing I've held as obvious, and find out that there is a hell of alot more on Heaven and Earth than is dreamt of in my philosophy [appologies to the Bard]

    I appreciate the post, and the fact that he answered the questions. And I generally agreed with his point of view. But Slashdot is not a political party.
    • by Telex4 (265980) on Friday December 21, 2001 @04:07PM (#2738737) Homepage
      He wasn't espousing a political party containing eveyr Slashdotter. One of the worst features of the American and British political systems at the moment is that they only recognise large, monolithic parties. The many interest groups that exist ge tsidelines - that's why the all the groups who have a problem with the economics & politics of today have grouped under the "anti-globalisation" umbrella, whether they're strictly anti-globalisation or not.

      Back to the point though, Slashdotters could easily start by lettering MPs, Congressman, MEPs etc to voice their concerns. Pro-Microsoft Slashdotters can urge their representatives to drop proceedings. Anti-DMCS Slashdotters can urge them to re-structure the digital-law travesty. Even if the Slashdot audience divided into about 20 or 30 interest groups, it would still provide a useful and effective lobby.

      As Lawrence pointed out, posting comments to Slashdot may give eveyrone here a great chance for debate, but it's not going to achieve any more than that in the long run.
  • by Telex4 (265980) on Friday December 21, 2001 @03:50PM (#2738669) Homepage
    I think he was spot on when he said that there are too many very intelligent, technically minded people on Slashdot who either don't think about, or actively shirk, essential issues of freedom and politics surrounding technology.

    Take the way a lot of people dismiss the Free Software Foundation, for example, believing that GNU/Linux, Slashdot and other great "programs" could have been created without the ethic and philosophy behind Free Software. Anybody who talks about freedom gets called a commie and is modded down by ignaramuses who are more interested in the fine details of mallocing than the yare in being able to malloc without being sued to hell for it.

    People also bitch a lot about cryptography, the DCMA, Skylarov, etc. but what do you all do about it? And you dismiss those anti-globalisation, feminism, vegan, anti-war etc. protesters out on the street at least *voicing* their concerns, however valid they may be.

    It's time Slashdotters took pen to their concerns and started writing to local papers, and organising local groups to demonstrate against these problems we face. Otherwise we might as well fiddle with code while Rome burns.
    • by Anonymous Coward on Friday December 21, 2001 @03:55PM (#2738687)
      It's time Slashdotters took pen to their concerns and started writing to local papers


      Dear Appleton Times (incorporating Springfield Gazette),

      FIRST POST!!!!!

      Yours,

      Slashdot
    • I think GNU is half the problem. The GPL is based entirely on copyright law. The more people want to enforce the GPL, the more current copyright law gets enforced. Any successful suit that defends the GPL will also defend the current copyright model. It's rather like a bunch of hippies setting up a commune because "land should be free", yet hauling trespassers into court.

      If you think copyright is wrong, or that the current implementation of it is severly corrupt, then it behooves you to use the least restrictive license available. The GPL is a long ways away from being the least restrictive license. The GPL makes sense for a lot of projects, but it is the wrong license to use for undermining or weakening the current copyright situation. For that the MIT and BSD licenses are much more suitable. Heck, we ought to be lobbying for laws to make it easier to place your works into the public domain, and then doing so.
  • "If you think it [file sharing programs] should not be legal, what remedies should the law consider, since these systems can have significant non-infringing uses as well?

    LL:

    I support these technologies. More importantly, I support the right of innovators to develop these technologies. But I don't support copyright violations using these technologies.

    You'd think this would be an easy distinction to understand: We live in a country where 10 children are killed by hand guns every day. But Smith and Wesson doesn't worry that the FBI will come arrest them because someone used their technology to commit a crime. The law targets illegal uses of technologies, not the technologies - at least where there is a legitimate and legal use of that technology. Yet because of our extremism when it comes to copyright law, we ban technologies that threaten copyright interests whether or not they have legitimate, independent uses."

    How insightful. The line, however, gets blurred when I say that a legitimate useage constitutes sharing copyrighted works for free because it means I have access to more works that I would not otherwise have access to which I could then be making MORE purchases of copyrighted material for full-quality versions (which I do believe is true in most mp3/online digital works cases), versus someone who finds this to be the exact copyright violation that is harmful to a company or individual.

    Although I did not ask a question last time, my question now would be, how do we draw the line? I'm not going to bend on my values, and the RIAA sure as hell won't bend on theirs, so who is right? Those who scream the loudest? If that is the case, then I have sorely been far too quiet for far too long already.

  • by Pinball Wizard (161942) on Friday December 21, 2001 @04:07PM (#2738736) Homepage Journal
    (1) how the architecture of the Internet built a set of values,
    (2) how those values are fundamentally linked to the most important freedoms in our tradition, and
    (3) how changes in that architecture of the net could undermine those values.

    This needs to be conveyed loud and clear to every one of our legislators. As an article posted previously today stated, content providers want to take away general purpose computers and replace them with specialized devices. We must not let them!

    • You son of a bitch. Man, do you ever get it. I wish this could be modded higher than it is. Let me repeat:

      they want to take away our general purpose devices, and replace them with specialized devices.

      They want to take away our creation devices, and replace them with things that can't/won't. Talk about the ultimate reduction in speech! Think of all the speech/creativity/economic activity that has been produced by general computation. And kiss it goodbye.

      That, my friends, is why a contribution to the EFF might just be in your best interest.
  • by Mister_IQ (517505) on Friday December 21, 2001 @04:13PM (#2738758)
    As a Canadian, and a Slashdot lurker, I must say that I feel rather strange about this whole issue.

    I feel rather like I'm standing watching through the keyhole as my fate is being argued and decided by people that I don't know.

    I have less-than-zero say in the American system, yet the American system will essentially be deciding what's "right" for me and the rest of the world. (Foreign coders being held for work they did in foreign countries that breaks American law...)

    My first thought when I read the article was "So, you have lots of critique of our sloth, but very little specific direction to get us off our butts". My second thought was "And if he DID give suggestions, they would most likely be directed at the American government (like writing congressmen, etc) and therefore essentially useless for me."

    Anyone out there feel the same? What can I do as a non-American? Yes, I can give to the EFF, and yes, I can write to my own government, but let's be honest: The next time Chretien is in town, Dubya ain't gonna be asking him his country's stand on Copyright Law...



    • It's important to recognize that Skylarov's company was selling to Americans, that's how he got into trouble. As long as his product had remained exclusively Russian, he would have been fine.


      Obviously, it was a bad arrest, and in violation of all kinds of things, but it was still a bit removed from your claim that the American government will dictate to the world.

    • by cgreuter (82182) on Friday December 21, 2001 @05:07PM (#2739022)
      >As a Canadian, and a Slashdot lurker, I must say that I feel rather
      >strange about this whole issue.

      Me too.

      >Anyone out there feel the same? What can I do as a non-American? Yes,
      >I can give to the EFF, and yes, I can write to my own government, but
      >let's be honest: The next time Chretien is in town, Dubya ain't gonna
      >be asking him his country's stand on Copyright Law...

      If everyone in the country starts writing him about how important
      copyright law is to them, he certainly will.

      Canada is still its own country and still has its own laws.
      Yes, the US has far too much influence on us, but there's always the
      option of just staying out of the US. I think that as Canadians, it
      is our duty to make sure our country stays free.

      In other words, "Think Globally, Act Locally."

      Consider: if Canada keeps its laws relatively sane while the US does
      not, it will become a haven for geeks. Brain drains get noticed
      because they bite countries in the economy, and if
      nothing else, that will restore freedom.

      Oh, and giving money to the EFF sounds like a good idea.
      • Consider: if Canada keeps its laws relatively sane while the US does not, it will become a haven for geeks. Brain drains get noticed because they bite countries in the economy, and if nothing else, that will restore freedom.

        Wouldn't that be nice. Unfortunately it's not the case.

        Canadian law will be updated to reflect current American law, both the CTEA and the DMCA. For the latter, it's a matter of international commitments. Don't blame the Americans, but blame WIPO and TRIPS (well, okay, blame the Americans too).

        Care to read about Canada's coming Intellectual Property reform [ic.gc.ca]? It's not for the faint of heart.

        And here's some more reading material [ic.gc.ca] in case you're not sufficiently riled at our government already.

  • by GrEp (89884) <crb002@gma[ ]com ['il.' in gap]> on Friday December 21, 2001 @04:16PM (#2738768) Homepage Journal
    Great article. Hmm. For some reason I doubt my congressmen read Slash.

    I am going to mail a copy of it with a short intro from yours truly to all my congressmen/representitives. I encourage all of you, even those not in the US to do the same. This article does a lot better in their hands than ours. For those in the US that are lazy here is a list of your House members [house.gov] and Senate members [senate.gov] that has their adresses and such.
    • by Inazuma (22966)
      I worked in my (state) senator's office over the summer, and I did get the opportunity to bend some people's ears.

      More importantly, I learned how to get the attention of people in political offices: call them.

      Think about it: these people get lots (LOTS) of mail, every day, and much though we hate to admit it, not all of it gets read, and even the stuff that does typically doesn't have much effect.

      Consider a case where 10 people decide to "do something", so they all write letters. 10 letters show up in the office of a Congressperson, and after one or two, the staff decides that they all pretty much say the same thing, and ignore them.

      What if those same 10 people called instead? For one thing, they'd be guaranteed to get more attention. It's a lot harder to ignore someone talking on the line with you, than it is to ignore a piece of mail. And imagine how effective 10 people could be in tying up a Congressional office for a day; you could have them call simultaneously and flood the office, or you could have them call sequentially, preventing the poor staff from getting any work done. A day or two of this treatment is bound to get some results (although make sure to be curteous and understanding; try to set up a meeting, but recognize that it won't be easy at all, and don't be afraid to settle for a meeting with a staffperson, since they're often crucially important in convincing politicians.)
  • EFF Lobby (Score:3, Insightful)

    by quark2universe (38132) on Friday December 21, 2001 @04:19PM (#2738781) Homepage
    If we do donate to the EFF and the like, what are they prepared to do? Do they have a lobby in DC to pull back the ears of the congressman and get some real results? Like it or not, hardly any congressmen read email or snail mail. They have staff people read and summarize what they receive. The only thing those guys hear is cash registers, cha-ching! And a lobby in DC for the EFF or some other similarly minded organization is the only way to effect real change.

    • If we do donate to the EFF and the like, what are they prepared to do? Do they have a lobby in DC to pull back the ears of the congressman and get some real results?

      They can't "lobby" and keep their 501(c)3 tax deductible status. OTOH, they can pursue "education" on relevant issues.

      (Put bluntly, they can give Congress white papers and testimony, but not money.)

      From the About EFF page [eff.org]:

      • EFF produces analyses to educate government policymakers and the public about the civil liberties implications of their actions and decisions. We have advised the Federal Trade Commission (FTC) on consumer privacy rights, the Sentencing Commission on intellectual property, the Child Online Protection Act (COPA) Commission and the National Research Council (NRC) on online censorship, and the National Science Foundation (NSF) and the Federal Communications Commission (FCC) on encryption, to name a few.
      • EFF monitors legislation and agency actions affecting the online community, working with EFF members and other organizations on global, national, state and local levels to affect positive change in technology policy.

      Note also that their legal work can sometimes undo bad legislation, and is more susceptible to reasoned argument than "count the dollars"--as long as they have the amount they need to pursue the case in the first place....

  • Mr. Lessig complains about the complacency of the Slashdot crowd and suggests we are lazy because we do not participate politically or (even better) donate enough money to political organizations like the one that pays him (the EFF).

    He calls for us to become "environmentalists" for the internet, and I think there is where he finds issue with us most. Slashdot readers do not ascribe as a whole to all the political beliefs he supports, even if many share his concerns regarding privacy, copyright, and technical issues.

    Well, I am not an enviornmentalist, and I do not approve of environmentalist tactics, and I do not consider the internet an "envirmonment" that needs preserved. I don't share a full range of political beliefs that coincide with his, or with John Perry Barlow's, or with Richard Stallman's.

    I don't agree with everything Eric Raymond's views either, although I believe his Geeks With Guns movement does a better job of relating personal freedoms to cyberspace. But he has earned my respect because he doesn't ask for my money, and also because he helps with some of the most unloved and unappreciated open source jobs (like correcting documentation).

    The way to fight a corrupt political system is not to feed it. I'm sure someone said something about replacing one tyrant with another. I'm not saying Mr. Lessig, or RMS, or the EFF are bad or wrong. But just because I don't pay your salary doesn't mean I'm not doing my part for freedom.
  • by Boatman (127445) on Friday December 21, 2001 @04:26PM (#2738829)
    Great words from Lawrence, but I have to take issue with his notion of a copyright renewable up to 75 years. At least he would require renewing every 5 years, but that's just an inconvenience, not a limit. We need the keys to our culture back within a sufficient time period that we can actually allow our culture to continue to develop!

    When something like "happy birthday to you" or "gone with the wind" becomes so much a part of our culture, how can we justify leaving its reins in the hands of the person who happened to put the words together - for an entire lifetime? The author synthesized it from the intellectual beams and trusses of our culture, and our culture then assimilates it. We whistle its tunes and quote its catchphrases, but we can't use it to build larger monuments in the commons. With current trends, none of our descendants will, either - but even with a 75 year copyright, our children's children will be grown before that right would become available to them.

    I'll be dead before I can write variations on "Just another brick in the wall", share a copy of the out-of-production "Swing Kids", or put on a production of "Phantom of the Opera" in my neighborhood.
  • by Desperado (23084) on Friday December 21, 2001 @04:27PM (#2738837)
    Dr. Lessig's comparason of the Internet as a Commons created for the free use of all and its gradual co-option by corporate/national interests reminded me of an old poem:

    "The law condemns the man or woman
    Who steals the goose from off the common,
    But lets the greater felon loose
    Who steals the common from the goose."

    We need to focus more on the Commons and how it benefits us all and less on the individual transgressions on the Commons.
  • by Mr. Fred Smoothie (302446) on Friday December 21, 2001 @04:28PM (#2738838)
    There's a challenge to slashdotters here, and I wonder if anyone reading this is up to it. Lessig is absolutely right that an important role for us digerati is to convince more Americans that there is a real threat right now to our core values as a society.

    I am thinking of Forming a PAC (Political Action Committee) to handle the PR/political machine side of this issue, as the EFF seems to be focussed more on the courts and influencing legislation *before* it's passed, and I think they do a good job at those activities. I almost registered a domain for such an entity today, but I think I want to research some of the relevant regulations WRT PACS and non-profits before I invest my personal cash in this.

    The two first objectives I think I'd personally have for this organization is to build a war chest to campaign VERY AGRESSIVELY against any member of Congress who votes for anything remotely resembling the SSSCA. I'm not sure if that would mean campaigning for a particular opponent in each race, or just lots of negative advertising about the candidate.

    Additionally, I'd like to see a TV commercial in heavy prime-time rotation which tells Americans how the MPAA & RIAA don't want them to have empowering technology and how Jack Valenti thinks the right of African Americans to creatively interpret their experience of our country's history is "insignificant."

    As I said, I'm going to look into this. If anyone else thinks this is a good idea and is actually willing to do something about it too, let me know.

    • Where will you get the $millions to run hit TV ads? I love the concept ("Ernest Hollings wants to take away YOUR freedom") but where are the bux?
      • That is the point. It's a PAC. The bux will come from me, you, and anyone else reading this or subsequent info about it and deciding that they agree and want to give money/get a tax credit for standing up for their ideals.
      • Just raise a big stink, dig up a political scandal, and the news networks will run your ads FOR you, free.
    • A question though. Do you know anything about how to go about this, or are you just looking to recruit someone who knows what to do?
      • I'm going to investigate it a little on my own first, and see how hard it looks like it'll be, and get an idea of what's required. At this point I don't know what kind of resources will be required. I suspect that it's not so much a question of expertise as it is resources & compliance w/ regulations, but I could be wrong.

        Of course, anyone who wants to volunteer expertise is welcome.
        • Among others with PAC experience, you might want to talk to Bruce Perens. (The real one, that is.) This idea is somewhat aligned with the original intent behind the now-defunct technocrat.net.

          Good luck.

  • LL's Radio Interview (Score:3, Informative)

    by sphix42 (144155) on Friday December 21, 2001 @04:28PM (#2738846) Homepage
    L.L. Talked with Diane Rehm yesterday about his new book and one of the callers was Hillary Rosen.

    Listen to link [wamu.org] at bottom of page.
  • The DMCA as a whole won't be struck down - ever

    If stupid legistations like this can be passed, and can never be struck down, wouldn't any political activism be a lost cause, then?

    If this is the case, what's the message to the mega corp? They can buy all the laws that will favor them, as they know that none can be struck down later.

    I believe there's a need to "do some clean-up", at least, clean up the irrelevant, the stupid, the ugly, the unjust, and the redundant laws.

    Or can this only be achieved through a bloody revolution? I hope not.

    • If stupid legistations like this can be passed, and can never be struck down, wouldn't any political activism be a lost cause, then?

      He said "as a whole". Laws are so big these days that it would be quite unlikely for every clause to be unconstitutional. Now, in the infinite future, it is likely that all of the parts will eventually become obsolete, and be overridden by new ones, but they won't all be "struck down".
  • by Ender Ryan (79406) on Friday December 21, 2001 @04:31PM (#2738861) Journal
    That was by far probably one of the best /. interviews ever to grace this site. You know, I always get fed up with the content of this site now and then, usually when things are slow and boring, but the #1 thing I like about /. (eat your heart out K5, nothing over there even touches it) is /.'s interviews.

    There have really been some absolutely excellent interviews here on /..

    Really, that's the only positive thing I usually have to say about /., but even still just for that and the mindless linking to good content, really makes this site still worthwhile.

    With that out of the way... ;-)

    This is an extremely important interview, this guy makes some really powerful points. WE (the people that "get it") need to get off our asses and do something. It's going to take serious sacrifice on our part though. It's going to cost money, time, energy and it's going to be one hell of a stressful ride.

    First thing you can do is get out that credit card or checkbook and send money to the EFF or freedom fighting organization of your choice. Don't just give a little, give a lot! If it doesn't hurt, then you're not giving enough. They NEED money to fight this fight!

    Write your representitives, both e and snail mail.

    Other than that I really don't know, I'm not good at this type of thing, but we all need to learn. We need some leaders to step up and lead us in fighting this fight. And we need to give them our full support, and we need to gain the support of the public.

  • by hubbabubba (309496) on Friday December 21, 2001 @04:35PM (#2738881)
    More importantly, I think we need to restrict the scope of "derivative rights" more than we do today. Copyright owners deserve to be paid for the use of their work; they should not be allowed to veto follow on work that builds on theirs.

    This view is almost always espoused by people who don't actually create anything that has value. When I take a series of photographs, they are MINE. Period. End of story. Nobody should have the right to incorporate MY images in derivative works without my permission. It isn't about getting paid, it's about having control over what *I* created, and to ensure that no one can pervert my work by using it in ways that I don't like. If you want a photo that looks like mine to incorporate in your own work, GO TAKE ONE YOURSELF.

    Compulsory rights require that the author of the original work get paid, but the rate is either set by the law, or set by a panel to be relatively low. This will give artists more than they would have had, had there been no Internet. But it will assure that innovators can build out the future of the Internet without the control of dinosaur industries.

    More than they would have had? Says who? The market determines the value of IP, and that's the way it should stay. Building these values into the law or setting them by committee is preposterous. Sorry for the photo-centric examples, but I can't imagine that a classic image by Ansel Adams, which is worth enormous sums of money, should have a value fixed by a copyright law that says you can pay his estate $30, then go right ahead and incorporate "Moonrise over Hernandez, New Mexico" in the graphics for your new website. That's just wrong-headed, and I'd love to hear Lessig defend his view. Cuz I just ain't buying it.
    • This view is almost always espoused by people who don't actually create anything that has value. ....

      On the contrary, your view is espoused only by creators who create things of little value, and then expect some glorious all reaching monopoly in return. The mathematician who coppies a math book and adds one or two of their own personal formulas gives society far more value than half the madonna's on the planet.

      More than they would have had? Says who? The market determines the value of IP, and that's the way it should stay. ...

      Even more bull. Markets are set by natural limits in supply and demand. Information has almost no natural limits in supply, but people do - and copyright law completely ignores this, and so does this agrument. It's a market regulation. get it.

    • If you want a photo that looks like mine to incorporate in your own work, GO TAKE ONE YOURSELF.

      Couldn't that also be considered a derivitive work, the way things are interpreted now?
  • Mea culpa (Score:4, Interesting)

    by jayed_99 (267003) on Friday December 21, 2001 @04:41PM (#2738907)
    He does have a point.

    We can't delude ourselves into thinking that whining on /. accompishes anything other than creating more input for a vicious feed-back loop that results in more whining on /. Someone can make a wonderful, insightful post, and it's like throwing chum into the shark tank. Nothing happens except we use it to justify the opinions that we already have. Hell, I'm just as guilty of it as anyone. I'll read a bunch of stuff, and just file it away so I can use it the next time I get into an argument. But I don't actually *do* anything about it.

    (And please, don't think that illicit, annonymous MP3 trading means you're engaging in civil disobedience. If it's not public; if it's not en masse; if the cops aren't tear-gassing your unruly mob; if nobody outside of /. is appaled about it -- it's not civil disobedience...the value is in the "civil" not the "disobedience").

    The only time I ever did anything differently was when the news about Dmitry broke. I was so appalled that I donated $250 (roughly 0.3% of my annual salary -- less than that after I figure my tax deductions for this year) to the EFF so I could feel good about myself. Sure, it helped the EFF, but really it was to sooth my own guilt about not doing anything. See, I can now go around and say, "I gave money to the EFF. Did you?" (Of course, I made them send me the hat and the tshirt).

    Did I write one damned letter? To anybody? Nope. No email; no snailmail. Becuase I had given some pathetic amount of money to the EFF, I was a good person. I didn't need to do anything else to feel good.

    I spread the word about Dmitry by telling my wife (who is only a techie by osmosis). For months, she randomly would ask, "what's going on with the poor Russian guy?". Of course, I track the news -- I'm aware of the issues -- so I'd tell her what the latest Dmitry news was; we'd commiserate about the stupidity of it, and we'd be done.

    Once again, because I knew what was going on...because I could explain about this hideous assault on our rights...I felt good about myself.

    I think that this disjunction between what I believe and what I do about those beliefs is due to the fact that, as a geek, I'm used to dealing with two types of arguments: one without an answer and one with an answer.

    The first type has an indeterminate answer (the religious wars)...vi versus emacs (vi)...BSD versus Linux (BSD)...GNOME or KDE (KDE).

    It doesn't really matter what the answer is, we all just like to argue about it and we all (hopefully) realize that ultimately it doesn't matter. No matter what side of the argument you choose, you'll still be able to get the job done. Your answer has more to do about differentiating yourself into the appropriate geek-tribe than it has to do with anything else.

    The second type of argument is the one with a definite answer...How should I upgrade this Oracle 8.0 database to Oracale 8i? What is the best way to backup this contacts database? How do I write a bubblesort routine?

    There are definite right and wrong answers to these questions. And if you pick the wrong one, you are going to suffer. And when you call me at 3:00AM, I am going to say, "I told you so!" and count my big geek-coup as I dance the victory dance on your stupid ass when I come in Monday morning. And you'll owe me many favors because I helped you out of the mess that you got yourself into by not listening to me.

    We all agree that the DMCA/copyright/trademark/patent/IP (hereafter known as "the issues") issues are of the second category. They have a right and a wrong answer. We are conditioned that when arguing about these type of questions all we need to do is say, "Your answer is wrong because of XYZ." Because we know that if you choose to make the wrong decision after we told you, you will be bitten on the ass and come crying to us to fix it.

    The problem is that the domain of the "the issues" is such that we will be penalized as well. And it's not going to be some short-term-next-Saturday-night kind of punishment. It will be a long-term, corrosive punishment. One day, we'll all wake up and say, "Fuck me. How did this happen?" But that's OK...because deep in our hearts, we'll all be saying, "I told you so."
  • Lessig is... (Score:2, Interesting)

    by Anonymous Coward
    a minor diety. "Code" is insightful and meets in the middle of geek & law. I had the opportunity to attend a dinner with him when i was taking 6.805 [mit.edu] last spring at MIT, and found him an elegant and persuasive speaker.

    Personally, I think most geeks are ignorant of what's really going on, legally, and instead rely on second hand or /. style information. Why? We'll, it's easier to be 'cynical chic' than an activist (and I mean not just sending emails around and signing petitions).

    The cases are out there, you can read them for free and learn how to think like a lawyer. "They" aren't willing to learn to communicate with us but we're smart enough to learn how to communicate with them.

    Think of law as code for our government. Just like real code, there are loopholes, exceptions, vague error handling, etc. But if you're a hacker, you'll find the loopholes, the exceptions, the tools you need to 'write' a good argument and if you're involved you can start educating lawyers and effect the 'code' being written & 'checked in' -right now-! :)

    limor (ladyada@mit)

  • by IronChef (164482) on Friday December 21, 2001 @05:06PM (#2739018) Homepage
    I run a publishing company. On my web site I am going to place a policy statement about how the PDFs we sell won't ever have printing or text copying disabled, even though the DMCA makes all kinds of "fair use" restrictions legal. I'm not shouting on the soapbox, just doing my part to educate the public.

    In this policy statement I wanted to link to a page describing what the DMCA is and why people should care about it. But believe it or not I could not find such a page. The only DMCA material I found was lengthy and tiresome, talking about Adobe and the Sklyarov case and blah blah blah... No one visiting my game company site is going to want to read pages like these:

    The EFF's US vs. Sklyarov FAQ Page [eff.org]
    Long, doesn't get to the point, doesn't even provide a quick link to what The Point is.

    The Anti-DMCA Site [anti-dmca.org]
    This is a terrible site. Right on the front page they ought to have a summary of their message, but there are just a load of links. Click on the Frequently Asked Questions link. There are no FAQs there, but there are FAQ links, one of which takes you to this FAQ [anti-dmca.org] page. Again, no one-pager on What is is and Why we should care. The closest thing is the What is the DMCA entry, which is a yawner, leading off with something about the World Intellectual Property Organization.

    If anyone knows where I can find a well-written explanation of the DMCA that is suitable for the microscopic attention span of the typical web surfer, please post a link.

    • "The D.M.C.A. outlaws technologies designed to circumvent other technologies that protect copyrighted material. It is law protecting software code protecting copyright. The trouble, however, is that technologies that protect copyrighted material are never as subtle as the law of copyright. Copyright law permits fair use of copyrighted material; technologies that protect copyrighted material need not. Copyright law protects for a limited time; technologies have no such limit.

      "Thus when the D.M.C.A. protects technology that in turn protects copyrighted material, it often protects much more broadly than copyright law does. It makes criminal what copyright law would forgive ...

      "Authors have an important and legitimate interest in protecting their copyrights. The law should help authors where it can. But the law should not push its power beyond the protection of copyright, and the law should especially not criminalize activities that are central to research in encryption and security." --Lawrence Lessig, in a July 31, 2001 NY Times op-ed

      Add a few bulleted examples of how the D.M.C.A. affects the typical web surfer's life and he'll sit up and listen.

    • Be careful, though. Not all of the DMCA is even controversial, such as the bit which makes using web proxies legal. Make sure that you specify the "anti-circumvention provisions".

  • Comments (Score:3, Interesting)

    by Greyfox (87712) on Friday December 21, 2001 @05:07PM (#2739024) Homepage Journal
    I've a few comments on some of his points. Lets see if I can cover everything...

    1) What a long winded way of saying "70 year copyrights mean that most of the works the copyright laws were meant to encourage are lost." We're losing a lot of video game history because eproms don't last more than a decade or so. A lot of those games were damn creative (And still quite playable.) Books, films, works of genius all going away because even if someone does care, they can't make the work available for others who might be interested. Sad.

    2) A lot of us are politically yes. At the very very least, get registered to vote and always vote against the incumbent. That'll at least keep our politicians fresh and too inexperienced to make much trouble. Or the entire /. population could descend on Montana or somewhere and take over through sheer force of numbers. This would buy us actual representation in Congress.

    3) Why would we not realize that open standards on the end-to-end network are not vital? One of my greatest fears is that some Evil company that shall remain namless will subvert TCP/IP, making it impossible for me to connect my Linux box to the net.

    4) I try to explain to non-techies I know that the new laws and media (HDTV for one) could prevent them from even being able to record their favorite shows -- this is an immediate threat and impact on their lives, you see. However my voice is limited and I have trouble reaching enough people. I have some contacts in more conventional forms of media, but thus far I have not been able to entice one of them to do a story on the topic.

    6) Most people only realize that MSFT is, in fact, the devil until it's far too late. History is littered with the corpses of companies that have made this mistake (Sorry for the melodrama. Couldn't resist.) What Microsoft must want from .net is the ability to tax ever transaction that takes place on the internet, which would give them more economic power than any government on the planet.

    What? Why must they must want that? Come on. Even if they thought it up brainstorming ways to make it easier and more convienent to shop on the net, it'll have had to occur to someone almost immediately that they could, in the process, tax every transaction that takes place.

    Have you ever played poker with a newbie? When they get a good hand, they look everywhere but at the pot because they don't want you to know how good their hand is. I notice that when Microsoft talks about .net, they're not looking at the transaction tax pot, and they're not looking at it REALLY HARD. You be the judge...

    12) Code is demonstrably speech. Code is a method of communication between programmers. If we didn't need that communication, we'd still be programming in ones and zeros, which would allow us to make the most efficient use of the hardware.

    The Internet's values are similar in many respects to our Founding Fathers. Who as we all know, were a bunch of vandelous rabble rousers. I mean, look at that whole Boston tea thing. They laid out a rabble-rouser-friendly foundation to our government because they were in charge then. Unfortunately the authoritarian government that would maximize corporate profits by insuring that all citizens remain good little consumers causes conflicts with this rabble-rousing foundation. And since destroying that foundation could cause problems, they have to chip away at it a bit at a time until nothing's left. That's what's happening now.

  • by epepke (462220) on Friday December 21, 2001 @05:11PM (#2739038)

    We need to relearn this lesson - in general, and in the context of the Internet. You guys could help teach that lesson. Indeed, only technologists have the credibility to speak reason to this idiot power. But that will require something more than a life of quibbling on Slashdot. And so far, you've not shown you're up to very much more.

    I'm surprised and pleased that more people haven't taken umbrage at this and other comments, because they deserve some clear discussion. I don't take umbrage at all, but I do think that the comment is inaccurate. We may be cynical, but I don't know of another group of people that, pound for pound, does more real politics than geeks. I'm sure that we could do more, and I understand Dr. Lessig's frustration, but the real problem is that there aren't enough of us. Slashdot is the only community of geeks that is big enough even to cause a blip on media radar, and even then they think it's slashdot.com. On a good day, maybe 15% of the articles and responses are substantive and articulate. If all of those people got together and marched on Washington, the throng would be the size of a church tour group. There just aren't enough to make a substantial impact.

    It also seems to me that as Dr. Lessig has chosen a career in law and has achieved a position of importance, he will tend to see that culture as the hammer to use on all nails, just as we may naively see a technical solution as the one to follow. He may be certain that the Supreme Court would do the right thing, but I'm not. I think they do a pretty good job, but we must occasionally set the waback machine to 1947, when all of the civil liberties lawyers were certain the Hollywood Ten would prevail. They didn't. They went to jail and their careers were essentially destroyed until some made a partial comeback in the 1970's.

    In any event, especially if everything about politics and democracy be true and worthwhile, we need more people. Martin Luther King's speeches were nice, but as the TV commercials show, they wouldn't have meant much without the audience.

    What we need is an amplifier. Arguing with other people fills the desire for an amplifier, but it has poor efficiency. There is another kind of amplifier, a way in which a small number of people or one can sway millions: it's called "art."

    We need the equivalent of 1984, Uncle Tom's Cabin, Dr. Strangelove, or even M*A*S*H. Vehicles like that are one practical way for one person or a small group of people to present a vision. The only question is how to do it.

    Neil Stephenson could do it, I think, as he is an established author with enough crossover appeal who understands the problem. Other authors with the ability seem to be either confined to the SF garrett or are not established. These days, it is harder than ever to become established as an author of fiction, and I'm no Neil Stephenson.

    Plays don't seem fertile. In the past, I've seen two technically-oriented plays. Alan Turing, The Enigma was quite good but of course focused on the human drama (as everything ultimately must). Y2K focused on the Evil of those Bad Hackers, but this is not the reason it was bloody awful.

    Fine art and sculpture have a limited use. I might imagine an installation that could make participants feel the problems, if there were a sufficiently talented artist. SIGGRAPH has had some pieces that have been promising. However, only a handful of people will ever experience it. Besides, the culture of this kind of art, to paraphrase Fred Brooks, has been given over to art as personal exorcism with little concern for the audience. The first thing most artists put in multimedia is their baby pictures.

    Film could do it, but for obvious reasons this will not come out of Hollywood. Dark-horse independent films are not out of the question. Probably like many slashdotters, I carry a complete video studio in a knapsack, but I'm no Stanley Kubrick, either.

    Computer games are interesting. I think there's a chance they will develop into an art form as important for the 21st century as movies were for the 20th. Of course the irony of using the computer to deliver a message about freedom through computers is a double-edged sword. However, there are a number of technological and storytelling issues to be addressed; I'm trying to address some of the technological ones with a project to become open source. Even then, some people will want a mindless shooter and that's it, but there at least will be some audience.

    It's quite difficult to produce political art that does not come across as vapid polemic, but it may be a worthwhile effort. Supporting auxiliary infrastructure, such as independent press, might be worthwhile as well.

  • by abe ferlman (205607) <bgtrio&yahoo,com> on Friday December 21, 2001 @05:16PM (#2739059) Homepage Journal
    "Who cares? I would like someone to explain to me what harm is being done to the world by Mickey Mouse's copyright being extended twenty years. How does that harm anyone's ability to be creative or incentive to be creative."

    Here's the answer to this question: imagine Disney held the copyright to Santa Claus. Imagine all the children's literature that would not have been written if someone owned Santa Claus! They are comparable children's icons in almost every way, except that one is associated weakly with religion and strongly with giving, and the other is associated weakly with childhood and strongly with the greed of the Disney Corporation.
  • I've been thinking about what we're loosing to extended copyrights. I'll just write something briefly about it.

    Popular culture is designed to be short-lived. They put a record out, after a few weeks, it is gone. Nobody ever hears it anymore. Most of it is even recorded on media that doesn't last more than a few decades. By the time the copyright expires, there will exist no record of it, unless there is somebody out there who has some reason to make copies that'll last longer. Nowadays, even if there were, they wouldn't be permitted.

    So, we're loosing our popular culture to the darkness of history. Never before in history has it been so easy to preserve our history for the future, yet, when future historians will look for our history, all they will find is a big, black hole. All this is due to copyrights. I think the future will not judge us lightly.

    Ok, so what? Who cares about Brittney Spears anyway. Isn't it just as good that all is lost in the darkness?

    Well, my girlfriend dragged me to the Opera (no, not the browser I'm using :-) ) to see Onegin [metopera.org], a ballet by Tchaikovsky. They even had this big-shot in the title role. Nowadays, the whole thing would have been done in three minutes and would have gone like this "Hey, keep your dirty fingers off my girlfriend! Yeah, sure, get your filthy hands off of her! What if I don't? I'll blow your brains out! Booom. Dead. Oh, she's sad." That's it. And I still wouldn't have bought the record. But this took two hours, and they were jumping around on the stage like mad. I laughed my ass off in the most tragic scenes where they shot at each other, it was just pathetic.

    I have to conclude that this was the popular culture, analogous to Brittney Spears, of this past epoch. Some might disagree with this analysis of ballett, but that would only serve to underline my main point:

    What if ballett had been lost due to copyright restrictions? That is the kind of harm today's copyright regime will probably do.

  • We live in a country where 10 children are killed by hand guns every day. But Smith and Wesson doesn't worry that the FBI will come arrest them because someone used their technology to commit a crime. The law targets illegal uses of technologies, not the technologies - at least where there is a legitimate and legal use of that technology. Yet because of our extremism when it comes to copyright law, we ban technologies that threaten copyright interests whether or not they have legitimate, independent uses.

    I am astounded that LL would respond so foolishly. What a horrible comparison. 99.999% of content on file sharing services (kazaa, gnutella, et all) is copyrighted, and is being distributed illegally. If 99.999% of the bullets fired from handguns were used to murder people; governments, and society in general, would outlaw the production of handguns in a heartbeat.
  • It occurs to me that extension of copyright has a direct cost that's quite real. Why does the government grant copyright? To encourage creativity, and the public exposition of that creativity. It helps drive the economy. But there is a cost that nobody discusses: Society/government bears the burden of enforcement. Why should the government agree, in perpetuity, to incur the cost of enforcing copyright law? What does greater society gain back in return for agreeing to enforce copyright? Not much, over a long term.

    Most people think that there's some kind of right to have copyrights and patents. From where I stand, it just ain't so. Copyright and patents exist to further the aims of society, not to further the aims of individuals. Sometimes they coincide, and individuals benefit greatly.
  • by bwt (68845) on Friday December 21, 2001 @05:27PM (#2739110) Homepage
    LL: I am not optimistic, however. Those who get it (e.g., you) are pathetically apolitical. You're proud of your apathy. You're disgusted with people who try to persuade politicians. So am I. But while you do nothing, the future of creativity and innovation is sold in DC - typically to the highest, and most disgusting bidder.

    Thanks for responding to my question, but I think you misunderstood it a bit. I am not apolitical, not inactive, not doing "nothing". Rather I have contacted my Congressmen, submitted comments to the Copyright Office, joined the EFF, and even helped write an Amicus brief submitted by Openlaw in the DVD case.

    I've been heavily involved with the fight against the DMCA, and am looking back *after the fact* and wondering whether the process was capable of finding the voice of "The People".

    Mine was **NOT** a question asking forgiveness for apathy because I have been anything but apathetic. I not "disgusted with people who try to persuade politicians" at all, because I am one. In fact, I have directed input toward all three branches of government. As a result each branch has issued opinions/statements that are unresponsive and incompetent at best and intellectually dishonest at worst.

    For example, in my comment to the Copyright Office, I pointed out that in PREI v Columbia, the Supreme Court acknowledged that the "owner" of a movie had a first sale right to private performance. The Copyright Office issued a report which completely ignored this point, even though they were tasked by Congress with identifying the DMCA affects on first sale. I believe that they did so because the process was a futile exercise that achieved nothing other than allowing them to say that they had received public input.
  • software = book (Score:3, Interesting)

    by TMB (70166) on Friday December 21, 2001 @05:30PM (#2739132)
    Something occured to me while reading the answer to question 7 re: the doctrine of first sale.

    What if one were to create a piece of software that was exclusively dedicated to displaying an original novel that was available in no other way? And then slapped an EULA on it that prevented resale? How would the courts treat that? Is there a way there of demonstrating that an EULA can take away rights that have been otherwise guaranteed?

    [TMB]
  • Copyright law gives authors an incentive to produce.
    OK, if I got a second chance to ask Lawrence Lessig a question, that would be:
    Does this statement of yours signify that you don't agree, or never agreed, with Eben Moglen's
    econodwarf argument [firstmonday.org]?
  • by CaptainCarrot (84625) on Friday December 21, 2001 @06:03PM (#2739303)
    From Prof. Lessig's first answer:

    And as there is no pro-speech benefit for this speech-supressing regulation, it should be struck under the First Amendment.

    As a non-lawyer and someone who is not an expert in Constitutional law, it seems odd to me to hear copyrights discussed in a First Amendment context. The First Amendment did not exist when Article 1 Section 8 was drawn up, and its inconceivable to me that the authors of the Bill of Rights would have considered that any part of it contradicted what had been so recently ratified. Wouldn't the Constitutional foundation of copyrights suffice to strike down the Bono act?

    "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"

    I'd have thought that in those rare instances where the intent of a clause is made explicit, then a law purportedly enforcing the clause but acting contrary to the stated purpose would be unconstitutional. Since the effect of the act plainly inhibits, rather then promotes, the progress of the "useful arts" as your example illustrated, that's surely the case here.

    The way I see it, good copyright law enhances the First Amendment by promoting free speech, and I can't really disagree that bad copyright law limits it. (And vice versa; free speech can only advance the "useful arts," never retard them. (Well, OK, maybe not considering some of the art that's being produced these days. But that's just a question of quality, not expression as such, and there's lots of gold amongst the dross.)) But I think the first violence here was against Article 1 Section 8, not the First Amendment.

  • Lessig argues that extending copyright on previous works is wrong because the authors of the work are dead and cannot produce anymore. He ignores that fact that having an extended copyright increases the incentive for current artists to produce. Without incentive - either financially or knowing that your art will remain true to your vision nothing would get done any more.
  • by Sgs-Cruz (526085)
    You know what, the coming era of DRM is not really going to be that bad. Let me explain...


    First of all, I want to get one thing straight. Stealing music is illegal. Whether you disagree with the compensation given to the musicians or whatever, when you steal an MP3, they get nothing. The general consensus on /. has been that the people here do not use MP3 (or whatever) file format for pirating music (whether they are lying or not, I don't know).


    Such that this is, I think that Digital Rights Managment, properly implemented, could be a great thing. This article [dlib.org] gives a good overview of how it might be implemented. Basically, it organizes information into a WORK, an EXPRESSION of that work, a MANIFESTATION of that expression, and an ITEM as a part of that manifestation. For example (the example they give on the page) the work could be The Name of The Rose by Umberto Eco. The expressions of that work could include the original, an english translation, etc. The manifestations, say, of the english translation expression could be the book and the book-on-tape. The items of the "book manifestation" could include an actual hardcover book or an e-version from some website.


    When you buy something, you have digital rights for either the work or any of the sub-levels. Owning the rights to the expression (the english translation) would get you all of the manifestations and items below that. Of course, most people would only own rights to one or a couple "items".


    Now, the main problem with this is that DRM-protected files won't work on legacy hardware. I agree that this is a big problem. (You hear! I agree!) But, I'm interested to hear, discounting this problem, would DRM really be so bad according to you all? If you bought a car-stereo, a portable stereo, a home stereo, and computer running LinuxDRM (or WindowsDRM), and they were all registered to you, you could buy "Metallica - Master of Puppets (Live with the San Francisco Orchestra).DRM.mp3" and it would run on all your DRM-registered items. If you sold one of those stereos, the new owner would want to change the registration in order to play his MP3s, and you could keep copies on everything you want. You could keep backups on every stinking computer in North America, as they would only work for things registered to you.


    Now, I can see a couple of problems right away. Hackers would crack the DRM in about 20 seconds from the first one landing in St. Petersburg, and this would be much easier to implement with a central registration system (which in my opinion is unacceptable, but there are ways around it). Any other thoughts?


    Wow, that went a lot longer than I thought it would. Note that all opinions are mine and I take responsibility for them.


    -Cruz

    • by ewhac (5844) on Saturday December 22, 2001 @07:28AM (#2740957) Homepage Journal

      First of all, I want to get one thing straight. Stealing music is illegal.

      So is driving faster than 65 MPH. What's your point?

      Such that this is, I think that Digital Rights Managment, properly implemented, could be a great thing.

      First off, let me correct your terminology. The term "Digital Rights Management" is a smokescreen, intended to deceive the public. Its proper name is Copy Protection. The free market long ago made the decision that Copy Protection subtracts value from digital media, and is not wanted. The software industry, by and large, accepted this, and went on to make trillions of dollars. But now that older media publishing companies are wading into the digital age, they want to re-hash this mess all over again. It's the same basic idea, except this time they've given it the name, "Digital Rights Management."

      I encourage you, do not go along with the semantic dodge, and call this stuff by its true name, Copy Protection. The computing consumer already understands what it is, and what it means for his/her investment in digital works.

      Secondly, I can assure you that copy protection, by definition, cannot be implemented fairly. The taxonomy you relate is certainly interesting, meriting further study, perhaps as a basis for new legal frameworks. However, copy protection technology is fundamentally unfair. At its core, it presupposes that uses not authorized beforehand by the copyright holder are prima facie unlawful and prohibited.

      As Professor Lessig correctly points out, this is pure bullshit.

      But, I'm interested to hear, [ ... ] would DRM really be so bad according to you all? If you bought a car-stereo, a portable stereo, a home stereo, and computer running LinuxDRM (or WindowsDRM), and they were all registered to you, you could buy "Metallica - Master of Puppets (Live with the San Francisco Orchestra).DRM.mp3" and it would run on all your DRM-registered items.

      Just so. But in this wonderful world you espouse, where is my right to create a DRM-registered player?

      Right now, I can go out and write a visualizer for WinAmp, or XMMS [xmms.org], or Cthugha [afn.org], or any other music player I care to name, take the digital audio data -- no matter its source -- and convert it into moving visual forms and images. In a world of copy protection, I would not be allowed access to the audio data to create those visualizations because, technically, there's nothing preventing me from, rather than visually transforming the data, just saving it out to disk instead.

      So, to write my harmless little display hack, I have to go to the RIAA and fellate some executive to get his permission, in the form of an "authorized player" key, to do so. Not only will this likely cost me thousands of dollars (assuming they don't reject me out of hand as not being a "credible developer"), but they will insist on code audits, precise download and usage statistics, and probably a key renewal fee. Moreover, after doing all this, if I fail to offer the proper ongoing tribute, or someone offers them more money, my "authorized player" key can be revoked, and all copies of my visualizer will stop working. My speech -- in the form of my code -- can be remotely and unaccountably silenced at whim.

      All for a fscking display hack.

      Now, generalize this to all forms of data meriting "protection": Music, software, text, Web page graphics, user interface layout, font outlines, Quake 3 Arena models, etc. It is not difficult to imagine that "permission" and "authorization keys" will be required to write any piece of software, and that obtaining same will be monsterously expensive, affordable only to wealthy corporations.

      Sorry, I'm not buying this. I don't buy for one femtosecond that this level of "protection" is necessary to effect commerce and make fortunes in the digital age. Hell, Bill Gates became the richest man in the world selling stuff that end-users could copy at whim.

      These reasons, among others, are why I've arrived at the conclusion: Copy protection is fundamentally unethical, and antithetical to the nature of computing. Copy protection measures as you describe will serve to kill innovation, not spur it.

      Schwab

  • Haven't yet read the 12.6 printed page response to questions from Lawrence Lessig yet, but will. I do however, understand th ejist of what he is on about and with that in mind I post here links to two other comments I have made today to other (but related) articles.

    Content vs. Tech faction - comment [slashdot.org] and The Internet Shifts East - comment [slashdot.org]

    I do believe there may be a facet of the big picture Lawrence is missing, as is most all the rest of those involved. How do you remove "the commons" from language use?
  • because of our extremism when it comes to copyright law, we ban technologies that threaten copyright interests whether or not they have legitimate, independent uses

    This is my favorite part not because it's the most correct, but because it's the most thought-provoking (for me). It's like the doctrine of "substantial non-infringing use" stood on its head; I'm not sure where that leads us, but I'm sure I'll enjoy puzzling it out.

  • by GigsVT (208848) on Friday December 21, 2001 @09:21PM (#2739968) Journal
    Well, I've been putting it off for a while now. I havn't joined the EFF yet. I think I gave them a little money a long time ago, but I can't even remember when.

    My christmas gift this year, to my son, to the world, is a donation of $20 to the EFF. To think what we could accomplish, if copyright was reasonable, the things that would be available out there....

    I suggest you do the same. Most people here make $20 US in one hour of work. One hour out of the 2000 hours you worked this year. That's all it would take, to give our voice real power.

    Like open source, it only works if people like us give a little back. Even if you don't agree with everything the EFF does, they do always address the most important things, and that is what matters.

    If you have a good paying job, do it now, quit putting it off, it's our quiet revolution, our secret cause that most will never be aware of, but will reap the benefits of when we succeed.

    The time is now.

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