Lessig on the Future of the Public Domain

hank writes "The O'Reilly Network is running an interview with Lawrence Lessig -- author of "Code and Other Laws of Cyberspace" and "The Future of Ideas" -- on the future of the public domain, reaction to his calls to arms, and his next venture, Creative Commons, "machinery to build licenses that allow people to mark their content as available in any number of ways to the public domain.""

Comments

Re:Is it *that* bad?

[Seth Finkelstein]

See the chart of:

The Growth Rate of the Public Domain

This chart is a visual representation of amici's understanding of the decline of the growth of public domain as a result of repeated copyright term extensions.

Sig: What Happened To The Censorware Project (censorware.org)

Creative commons as licensing infrastructure

[zavyman]

Lessig has an interesting take on public domain, in that it is quite similar to the whole watermarking / DRM scheme.

That's why in one sense we're pushing to advance the public domain, but as a compromise position we're also pushing to enable people to make their work available in the public domain in an extremely easy way. So we're going to build machinery to build licenses that allow people to mark their content as available in any number of ways to the public domain, so that search engines can find and link to that content, and people can easily get it and understand the terms under which they're getting it.

This idea should sound familiar. This strikes me as a scheme quite similar to Digital Rights Management, but in a different direction. Instead of restricting the distribution of content, this technological measure would allow anyone to readily identify the license of a particular work.

Let's face it, small-time writers, musicians, and artists do not want to see their works used inappropriately in a commercial setting (and maybe not even inappropriately in a noncommercial setting), but they might want to allow individuals to share their respective works. This scheme would allow people to mark that situation so that anyone with the file could readily understand the author's wishes.

But, if this licensing scheme is put into wide use, it makes it trivial to implement a DRM management system that disallowed copying of files tagged with a restrictive license. So you have to ask yourselves, is the aforementioned benefit of marking your works as copyable or not in a commercial or noncommercial setting worth it if it means that all commercial music will tag themselves as commercial and noncopyable?

Lobby Groups and Laws

[m0rph3us0]

When I look at the amount of money that Hollywood groups give to Senator Hollings, I think that its an amount that the supporters of the 'open source' movement could match. I think that if everyone who reads slashdot on a regular basis took up a collection for the EFF to be used to 'support' (read: buy off) law makers we could more then equal their buy offs by each donating $10. Personally, I would like to see open source lobby groups show up on the donation sheets of law-makers. What do you think about this idea? I'm willing to talk to the EFF and see if they will setup a pay-pal account for people to donate and help us encourage laws to be written that favour intellectual stimulation.

Not that impressed by Lessig or the EFF

[Anonymous Coward]

It seems to me principly they have failed to look beyond their own field. As a lawyering organization, the EFF has this belief it can "finess" and solve legal issues thru high mindend ideals like "software is speech" and then proceeds to loose case after case. The problem is they fail to see the system is so broken that it can no longer mearly be solved within itself.

DeCCS as a free speech issue is dead. The system wont accept this. Clearly, instead, this should have been done as a 4th ammendment case, not 1st! "Code as speech" nobody will get. That I have an absolute right to be secure in my own property is an issue every living breathing American can and will understand. The right to private property is what we often stated makes us different from "them", when "them", of course, was the good old "red menance".

What does DeCCS and the 4th ammendment have to do with couchmaster joe sixpack watching nascar is very simple. Tell him he cant take a cd, his own private property, and hell, stick it in a toaster if he so chooses and can get it to play that way, or similarly play it using a linux machine in his own home if he can figure out how, using his own property. That he can be arrested and jailed under the DCMA for simply using his very own private property. That he will understand. It's what we liked to say "they" would do.

There is a very valid 1st ammendment issue as well, but "code as speech" is not the one. If I can figure out how to make a toaster play my cd I have an absolute right as a free citizen to tell another and he has an absolute right as a free citizen to do this with his own propertly regardless of what the DCMA may claim about circumvention. DeCCS represents permitted and protected speech as public communication between individuals sharing knoweledge on how to use their own propertly, end of story.

Re:Not that impressed by Lessig or the EFF

[Seth Finkelstein]

Arguing DeCSS as a fourth amendment case is like arguing against cryptography restrictions as a second amendment case (i.e., if crypto is a munition, we have the right to bear arms, so the right to use cryptography). It's something which sounds cool in a web-posting. But the courts aren't Slashdot posters, and they will take that argument down to (-1, Troll) as fast as an editor with infinite moderation points (which, in this case, they are).

The courts reason that they're protecting the property rights of the copyright owners, and only the speech aspect even gave them pause. Read the decision:
(emphasis added)

In considering the scope of First Amendment protection for a decryption program like DeCSS, we must recognize that the essential purpose of encryption code is to prevent unauthorized access. Owners of all property rights are entitled to prohibit access to their property by unauthorized persons. Homeowners can install locks on the doors of their houses. Custodians of valuables can place them in safes. Stores can attach to products security devices that will activate alarms if the products are taken away without purchase. These and similar security devices can be circumvented. Burglars can use skeleton keys to open door locks. Thieves can obtain the combinations to safes. Product security devices can be neutralized.

...

At first glance, one might think that Congress has as much authority to regulate the distribution of computer code to decrypt DVD movies as it has to regulate distribution of skeleton keys, combinations to safes, or devices to neutralize store product security devices. However, despite the evident legitimacy of protection against unauthorized access to DVD movies, just like any other property, regulation of decryption code like DeCSS is challenged in this case because DeCSS differs from a skeleton key in one important respect: it not only is capable of performing the function of unlocking the encrypted DVD movie, it also is a form of communication, albeit written in a language not understood by the general public.

Sig: What Happened To The Censorware Project (censorware.org)

Million Mouse March!

[jparp]

If the Eldred case fails,
we should all dress up like Mickey Mouse and stage a protest in Washington.

That would get media and public attention, plus, we would all be violating copyright law!

Yup.

[jcsehak]

is the aforementioned benefit of marking your works as copyable or not in a commercial or noncommercial setting worth it if it means that all commercial music will tag themselves as commercial and noncopyable?

First of all, I think it'll be proven trivial to hack files to change their tags from not-copyable to copyable (as another poster suggested, repeat after me hackers: "I will not decrypt a copy-protection scheme until it is a widely accepted standard."). But even if it wasn't, I simply won't support any musician who takes that kind of stand. And not even as a moral thing, more as a matter of taste. For example, I liked Metallica until I saw Lars being a prick over the whole Napster thing. Now I think they're greedy bastards and it's ruined any enjoyment I've gotten from listening to their music. Personally, I hope a lot of other people will do the same thing and only support musicians, authors and publishers who use a more open licensing scheme.

Re:The Eldred case...

[Seth Finkelstein]

I think the best argument they have going for them is that extending the copyright of already created works cannot possibly meet the constitutional requirement that copyright law "promote the progress of science and useful arts".

I'm not a lawyer. But, careful, that argument has actually lost (by 2-1) in the Appeals Decision
(emphasis added)

Such guidance as the Supreme Court has given further confirms us in this view of the matter. The Court has made plain that the same Clause permits the Congress to amplify the terms of an existing patent. As early as 1843 it established that the status of a particular invention and its protections must depend on the law as it stood at the emanation of the patent, together with such changes as have been since made; for though they may be retrospective in their operation, that is not a sound objection to their validity; the powers of Congress to legislate upon the subject of patents is plenary by the terms of the Constitution, and as there are no restraints on its exercise, there can be no limitation of their right to modify them at their pleasure, so that they do not take away the rights of property in existing patents.

McClurg v. Kingsland, 42 U.S. 202, 206.

Within the realm of copyright, the Court has to the present era been similarly deferential to the judgment of the Congress. "As the text of the Constitution makes plain, it is Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors or to inventors in order to give the appropriate public access to their work product;" that "task involves a difficult balance between [competing interests]" as reflected in the frequent modifications of the relevant statutes. ...

Sig: What Happened To The Censorware Project (censorware.org)

Overlooking a key point....

[coyote-san]

You're overlooking a key point here.

The problem isn't that the RIAA and MPAA want to make it impossible to copy their product, it's that they want to make it impossible to copy *ANY* product because their schemes implicitly assume that all "legitimate" files are under their umbrella.

That's nonsense. I think we all have friends with their own bands - the RIAA proposals would make it impossible for them to share their own music. We all have friends with young children, the MPAA would make it impossible for them to share video footage with friends. It would make it impossible for older kids to put together video domentaries for "what I did this summer."

If the RIAA actually succeeded in making it impossible to copy their product, provided that it didn't interfere with other legitimate copies, I would cheer. I would see this as bringing us one day closer to a day when real diversity returns to the music store and airwaves because the non-RIAA players could get their voices heard.

But the current proposals would lock in the RIAA and the MPAA as THE arbitrators of their respective arts in this country. If you don't sign a deal with a major label under terms even worse than today, you would be forced to live in the technological gutter. On countercultural-friendly college campus it may become cool to go analog, but everywhere else it would be an insurmountable barrier.

Re:Overlooking a key point....

[Bodrius]

I think the CDBTAAPGEHNASE or whatever the SSSCA is called these days will outlaw any hardware/software that does not implement a copyright management system approved by (read designed by) the RIAA/MPAA.

This means that directly or indirectly they get to decide which alternatives for protection are available, the minimum cost of recording devices (even outright outlaw recording technologies as "fundamentally insecure"), and their availability in the market.

The small documentary studio would not survive a dramatic increase in the cost of recording and reproduction technologies. And even if the startup band is able to afford recording at a licensed and approved studio, their costs of distribution would be higher and their available licenses would be restricted to the options pre-packaged by the studios in the technology.

Re:The Eldred case...

[coyote-san]

High sounding language, but the intent of such escape clauses is to allow Congress to normalize laws to reflect changes in the rest of the world. E.g., if everyone else has standardized on 50-year non-renewable patents, then US inventors are at a sharp disadvantage if they lose patent protection after a 20-year non-renewable term.

But note well that 20 years is well within the expected lifetime of the inventor, and even 50 years is well within the expected lifetime of his immediate family. The recent extension to copyright law is so long (75 years after the death of the author, IIRC, which could translate to well over a century after first publication) that heirs born long after the deaths of the author and his immediately family still own the copyright.

It is hard to identify much difference between this and the Titles Of Nobility explicitly prohibited in the Constitution. The main difference between the Duke of New Jersy and the Duke of Disney is that there can only be a single Duke of New Jersey, whereas the Dukes of Disney may number in the hundreds and have such diluted interest in their 'property' that it is essentially abandoned yet still denied to others.

Re:Why Lessing bothers me.

[The Cat]

get rid of the notion that it's allright to derive value by restricting the copying practices of other

Isn't this just the opposite extreme? Why not just restore the original balance of copyright and try that?

For the best example of this working, take a look at the patent system. 17 years. That's it. Companies make fortunes on patents. So do the companies that don't own them (after 17 years).

A 20 year copyright would dramatically improve the situation. Removing copyright completely would do significant damage to the economy, and make it near-impossible for anyone who's work is copyrighted to make a living.

On it

[jcsehak]

I'm at this moment writing up a license based on the GPL except to be used for musical recordings. I've started a label, Root Records (www.rootrecords.org should be up sometime next week), to distribute this open source music. An interesting twist is that I've decided that open source for music means that the source audio (the separate tracks--bass track, drum track, etc) should be distributed like a program's source code. So people can remix the tracks any way they want. Since I've just started, the only artist under this label is myself. If you want to check out the music before the site goes up, my first album is available in its entirity in the audio section of www.joshuacsehak.com. It sounds something like a cross between Moby and William Orbit. I think it's great stuff, and the people I've had listen to it agree. One of my friends mentioned he'd been listening to the album every day since he downloaded it. CDs (and source CDs) should be available soon (less than a week) after the site goes up.

The problem with independent music isn't that it takes a lot of $$ to produce it (I actually like Liz Phair's Girlysounds CDs--demo recordings made on a cheap 4-track--better than her studio albums), the problem is that it takes, and will always take a lot of $$ to market it. Especially for musicians like myself who make music that can't really be performed live. Large labels will always have the advantage of being able to tell people what they want to listen to. But here's to "word of mouth!"

Re:copyright extensions

[sconeu]

your children should have find their own damn way of making money

Tell that to the Italians.

Here's a possible choice...

[SkewlD00d]

Why not have public patents?