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Friday, November 28, 2008

What I'm Thankful For

Sra: Does that pregnancy test still say I'm not pregnant?

Ian: It says... yes.

Sra: Yes... I'm not pregnant?

Ian: Yes.

Sra: Phew! Thank god!

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Monday, November 24, 2008

The Second Civil Rights Movement

Thanks to Pants for recommending Carol Lynn Pearson's collection of true stories called No More Goodbyes: Circling the Wagons around Our Gay Loved Ones. This is a very timely book to read following California's recent passage of Proposition 8. Actually, it would have been a more timely book to read BEFORE the election. Maybe if more people had read this book, the results of the vote would have been different.

The book is written primarily from an LDS perspective. Pearson is an LDS woman who years ago married a gay man in a traditional Mormon temple ceremony. The story of that marriage is not the subject of this book, but of her previous work Good-bye, I Love You, published in the 80's. This book, rather, is a collection of stories by and about gays in the Mormon church. Many of the stories are heart-breaking, but just as many are heart-warming. I was glad to be able to glean some understanding of why some gays choose to remain faithful to Mormonism even after recognizing their sexuality and coming out. It seems that religious belief and spirituality can be as much a part of one's identity as one's sexuality. So while to me homosexuality and Mormonism are mutually exclusive, I can now understand why some people are not willing to give up religion just because of the reality of their sexuality.

One line from the book I think sums up the gay marriage issue beautifully:

"They drew a circle that left me out. I drew a circle that kept them in."
(Spoken by Frank Matheson, Chair of Equality Utah just before the 2004 vote to amend the Utah Constitution to define marriage as between a man and a woman.)
To me, that says it all. Opponents of gay marriage want a definition of marriage that excludes gays. Proponents of gay marriage want a definition of marriage that includes straights. The more noble of those goals is obvious.

Another notable bit in the book is this quote about "traditional marriage" and the irony of Mormons taking an anti-gay marriage stance:
When anti-gay advocates use the term "traditional," I always wonder what tradition and what time. Do we support early 19th-century traditional marriages when married women had no legal standing, could not own property, sign contracts, or legally control any earned wages? ... I also find it somewhat hypocritical for the Church to appeal to people's emotions and use the "tradition" argument when it was on the receiving end of such abuse during its polygamy era. The Church more than anyone in this country should know how persecution feels...
(Stuart Matis, a gay Mormon who tragically committed suicide.)
Finally, unrelated to the book, but related to the gay marriage issue, here's a video that employs the same arguments Yes-Prop-8ers used against gay marriage, but substituting "divorce" for "gay marriage". (It's rhetorically satirical, in case that escapes you.)

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Sunday, November 23, 2008

Sunday Survey

Ok, I don't like to do surveys and other memes much, mostly because I think they are slightly self-indulgent and ofttimes boring, but today I did one anyway. I'm sorry. Will come up with substantive content later.

1. Do you like blue cheese salad dressing?
Love it, and will order it unless (1) a restaurant has real ranch dressing, or (2) I’m at Italian Village, in which case I always order O/V.

2. Favorite late night snack?
Bowl of cereal.

3. Do you own a gun?
No… I don’t feel comfortable around guns. I think E has one stashed somewhere though.

4. What’s your favorite drink at Starbucks or other specialty coffee shop?
8 oz. skinny latte

5. Do you get nervous before doctor appointments?
Only if I’m getting vials of blood drawn, and even then not too bad.

6. What do you think of hot dogs?
The perfect ballgame meal. I don’t even care what’s in it.

7. Favorite Christmas song?
Silent Night or Do You Hear What I Hear?, depending on my mood.

8. What do you prefer to drink in the morning?
Coffee most of the time, sometimes tea.

9. Can you do push-ups?
No I can’t, not even after a couple years of yoga. I have terrible upper body strength.

10. What’s your favorite piece of jewelry?
I don’t wear any jewelry. Used to wear a watch, but when it died in January, I stopped, and found that I kind of liked not obsessing over the time.

11. Favorite hobby?
Right now it’s reading books and writing blogs.

12. Do you have A.D.D.?
No. I’m kind of skeptical that anyone has ADD. I just think some people lack discipline.

13. What’s one trait that you hate about yourself?
Well, it’s not so much hate as that I wish I could trade my legs for E’s. Why is it so easy for men to have skinny legs?

14. The last disease you contracted?
A fever, and the only prescription was more cowbell.

15. Name 3 thoughts at this exact moment.
1) Is it totally lame that I’m filling this out?
2) Yes, I think it might be totally lame.
3) Oh well.

16. Name 3 drinks you regularly drink?
1) Coffee
2) Perrier (it is THE best sparkling water)
3) Tea

17. Current worry right now?
Financing law school in this terrible economy.

18. Current hate right now?
My noisy next door neighbors who never sleep and always chatter.

19. Favorite place to be?
In bed asleep… sans noisy neighbors piping through walls.

20. How did you ring in the New Year?
I don’t actually remember, which means we probably stayed in, watched movies, drank a bottle of champagne, and went to sleep. Will likely do the same this year.

21. Like to travel?
Love it. Hate flying though. Not for fear, but for the hassle.

22. Name three people who will complete Sunday Stealing this week:
I don’t watch football.

23. Do you own slippers?
Yes, but I suppose I never wear them. Perhaps it’s time to try.

24. What color shirt are you wearing?

25. Do you like sleeping on satin sheets?
I don’t know, I’ve never tried. I don’t suppose it would make a difference.

26. Can you whistle?
Yessum. I’m actually quite good at it when I’m sufficiently warmed up.

27. Favorite singer/band?
Imogen Heap/Wir Sind Helden

28. Could you ever make it 39 days on the show Survivor?
I can’t make just 1 day watching the damn thing. But no, cause I can’t even look at bugs, let alone eat them.

29. What songs do you sing in the shower?
For some reason, I always come back to I Could Write a Book, ala Harry Connick Jr., or tunes from The Sound of Music or Jesus Christ Superstar.

30. Favorite girl’s names?

31. Favorite boy’s names?
Bryant or Cable

32. What’s in your pocket right now?
Nichts. But I’m taking donations.

33. Last thing that made you laugh?
I was watching Four Weddings & a Funeral earlier, and I laughed. It’s still funny, it turns out.

34. Like your job?
I like some things about it, and not so much other things.

36. Do you love where you live?
No, I can’t say that I do. I love Utah and I hate Utah, so I guess that averages out to Like.

37. How many TVs do you have in your house?
2.5, which is weird because we don’t watch a lot of TV.

38. Who is your loudest friend?
My old roomie L-N M-C is the loudest person I have ever known. You could hear her coming when she was still 5 minutes away.

39. Do you drive the speed limit or speed?
Depends on the weather, but even when it’s nice I don’t speed much anymore. Maybe 5-10 over occasionally.

40. Does someone have a crush on you?

41. What is your favorite book?
That’s hard. Classics for me include Othello, Catcher in the Rye, Cat’s Cradle, Dealing with Dragons, and Die Physiker. Probably others I can’t think of. I love to read.

42. What is your favorite candy?
European chocolate of any kind.

43. Favorite Sports Team?
Salt Lake Bees or Real Salt Lake

44. What were you doing 12 AM last night?
Watching the Last Samurai. It’s alright. Kind of emotionally manipulative, which I don’t really appreciate.

45. What was the first thing you thought of when you woke up today?
I’m not sure that I do any thinking when I first wake up, but if I did, it was probably “Have you ever contemplated the universal implications of creamed corn?”

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Saturday, November 22, 2008

Cloud Study

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Friday, November 21, 2008

Nooz... i haz it

I got in to Santa Clara! I got in to Santa Clara!

It's in the Silicon Valley, and it's ranked in the 70's, which isn't bad at all. As far as IP goes, though, it's a really good school.

I'm just glad to be accepted somewhere, it's a relief. Now if I get in nowhere else, I at least know I'm going to law school next year. Phew!

This was the only school I applied for Early Decision on, which is why I know so early. (It's the only school that offered a non-binding early decision.)

Yay! Now I'm going to go out and drink some Cherny Bock at my favorite Bavarian Brew Pub!

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Thursday, November 20, 2008


(The gas station, not Sarah Palin. )

I've pulled my 1991 Buick Park Ave. into the Maverick driveway behind a large construction-type truck that is blocking the way to the only open pump. The way the pumps are oriented, the truck driver can't get into the parking lot until the car at the pump in front of the only open pump moves. I wait patiently. I know the drill at gas stations. The car finally pulls out, opening up the way for the large truck to move. The large truck pulls into the parking lot where the driver maneuvers around and reverses into a parking spot. A pedestrian dodges out of the way. I pull into the originally only open spot and park. I turn off the engine, flip the gas compartment, and get out of my car. Just then, the driver of the large truck opens his door and jumps down.

"Hey, I need to get into that spot right there," he yells at me angrily.

I look at the driver who is climbing back into his truck, look at the empty spot in front of me which is just as good as my spot, and say, "No." Then I go about removing the gas cap on my tank.

The man, who is even angrier now than he was before, jumps out of his truck and approaches me quickly, "I'm not fucking around here," he says, "I'm going to use this pump," and he removes his credit card from his wallet and shoves it into the machine.

For a split second I contemplate saying, "Thanks for buying me a tank," but then I realize that this angry Mr. Clean look-a-like is nearly a foot taller than me, and much broader, and instead I say, "Just wait a minute for me to finish."

"I've been waiting 10 minutes to turn this truck around," he says, getting up in my face. I can feel that he wants to hit me. I don't even think my being a girl is what's stopping him. I can understand, though, because I'd really like to kick him in the balls right now too. Thank god for public places.

"You know, that's the way it fucking goes at gas stations, dude," I say to him angrily as I twist the cap back on my tank. "Grow up!"

Then I climb back into the Ave., turn the engine, and pull 10 feet forward to the next pump. Mr. Clean has already raced back to his vehicle and maneuvered it around to my old spot. I get out of the car and attempt to insert my credit card with angry adrenaline flowing into shaky fingers. Somehow I manage to get the pump started. My tank only costs $30, which is half of what I was paying only a month ago, so I should be pleased, but I can't get over the way that sorry excuse for a man talked to me.

Let's back up the scenario and impose a re-write, shall we?:

I pull into the spot and get out of my car.

Man gets out of truck and yells to me, "Excuse me, Miss, I'm sorry, but I've been waiting to get into that spot. You see my tank is on the other side of my vehicle and I've been waiting for this other car to move so I could turn around. Would you mind pulling forward to this other vacant spot so I can get in there?"

"Oh yeah, sure, that's no problem. Have a nice day, sir."

That would have worked out much better for both of us, now wouldn't it?

How hard is it to be nice to people?

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Sometimes I'd rather stay in dreamland

"My alarm didn't go off this morning," I say to no one in particular as I drive down the little alley next to my apartment building. Then I try again, "My alarm mysteriously didn't go off this morning."

And that's when I realize I'm doing it. I'm practicing my conversations out loud, like they do on TV. I scoff at myself a little and shake my head, and a mostly imperceptible grin pulls at the corners of my mouth.

It's not like anyone at work will care anyway. Hell, I'll probably still beat most of them to the office. I am blessed to work in an office of mostly non-morning people, and those of us who are morning people don't exactly feel the pull of urgency to get to work bright and early.

As far as I can tell, my alarm really didn't go off this morning. I remember Ian planting a kiss on my cheek at 0-dark-hundred and then stealing away to his most heinous workplace that forces its employees to work during the hour of 7. The next thing I know, I'm waiting with some friends in a house in dreamland, each of us armed to the teeth. We know the enemy is coming, and no measure of fortification will keep them out. You can't beat the supernatural. It's only a matter of time.

Then I open my eyes, and the clock stares back at me with 9:41 written on its face. Shit. Now I'll never know if we made it out alive.

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Wednesday, November 19, 2008

Ephemeral Street Art

D.Billy is an urban artist who uses colored tape, balloons, and signs to spruce up otherwise mundane urban fixtures, like this police call box:

See more of his work at:

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Tuesday, November 18, 2008

Want to read some BlogSecrets?

So one of the blogs I read is participating in a BlogSecret event being hosted by SoMi. About 80 bloggers signed up to write an anonymous post that is then posted on another participant's blog. The idea is to get something off your chest that you wouldn't post on your own blog.

I love when people are candid and vulnerable and I get to watch ('cause I'm a little voyeur like that), so I really enjoy blogging events like this one. I've only made it halfway through the posts so far, but I have been able to relate in some way to several of the posts I've read. Which is, after all, one of the rewarding things about blogging -- being able to connect to other people out there, even anonymously.

I did not participate in the event this time, although I did consider doing so. The thing is I'm generally pretty candid in my posts anyway. Not to say there aren't things I keep to myself. Some of the things I have kept to myself thus far I'm planning to write about eventually, and some of the things I'm not sure if I will write about them at all. There are probably some things I would write about if, say, my family didn't poke in on my blog every now and then. So I guess on that hand, I would be able to contribute to such an anonymous blogging event. So maybe next time I will.

But for now, go check out the links under the BlogSecret link above.

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Monday, November 17, 2008

Free Culture Conference 2008: Larry Lessig on Remix Culture

The following transcript has been lightly edited for readability.

Spanish translation available here (Thanks, Jose!)

Lawrence Lessig on Remix Culture
Free Culture Conference 2008 Berkeley

EMCEE: I think the first thing on everyone’s mind that we want to hear from Professor Lessig is the book. So let’s start there, give us the blub.

Sure, so first, I’m not going to answer your question, because I’m not here to sell books. But I could tell you a little bit about the book, but I want to first start by saying how extraordinary it is to see this event. When Nelson, and the kids at Swarthmore, hatched the idea of launching, it was in my view the most important thing that could happen from this movement. There are great organizations in this group like EFF, Public Knowledge, Creative Commons, Free Software Foundation, those are extremely important, but the only way we win is if there’s a Students for Free Culture movement. To come here and to see this enormous number of people here to talk about these issues, is the most rewarding thing I think I have ever felt in the history of this, and I am grateful to you for that. Thank you.

So, there are basically three ideas in the book, and these are familiar to most of you, which is why this is kind of boring and I’ll say it very quickly. The first idea is to get people to recognize how culture is returning to something great that culture always was except for the weird 20th century, and that’s what I call a “rewrite culture”. I take this idea from something John Philip Sousa said when he came to Washington in 1906 to testify about what he called the “talking machines”. He said in this testimony:

When I was a boy, in front of every house in the summer evenings you’d find the young people together singing the songs of the day or the old songs. Today you hear these infernal machines going night and day. We will not have a vocal chord left; the vocal chords will be eliminated by a process of evolution as was the tail of man when he came from the ape.

Now the vision Sousa had of this professional musician is that amateurism is extraordinarily important to culture. And his concern is that the vocal chords, the ability to be amateur creators, will disappear, because we’ll become – what he didn’t know we would become – couch potatoes, passive recipients of culture, not creating it, not doing things with it. And that was, in many ways, the 20th Century. In the 20th Century, there were extremely important kinds of culture, like film or recorded music, that most people couldn’t have any real connection to. You couldn’t make a great film, you couldn’t make a great record, because the technology was so far removed. And so we became passive relative to this culture.

But the 21st Century is a century when the practice of amateurs creating and getting together and singing – but now doing it on YouTube, or on Facebook, or on MySpace – will recreate this rewrite culture from the past, and we will go back to a place where people are once again just as empowered to create as the professionals. Think about it, in 1906 all the professional creators of the time like Sousa and his band and pianist and people who would perform with violins, there were also amateurs who could do all of those things, and that’s where we are today again. It’s a kind of cultural literacy. You know, if you’re 20 years old and you can’t make a film, there’s something wrong with you, right? I mean if you can’t remix using digital technology, you’ve been somehow deprived in your education, and what we need to recognize is that this generation is radically different from mine. My generation was kind of embarrassed by the idea of creating, but your generation and the generation that will come after you is a generation that celebrates creating, and that’s something that the law’s got to begin to encourage. That’s idea one.

Idea two is also optimistic. It’s kind of a weird book because it’s optimistic in a lot of ways. Weird for me.

EMCEE: You always say you’re such a pessimist.

I know but I’m not anymore. That’s why I had to get out of this movement, cause I had to find a new movement where I could still be really pessimistic. [Pointing to “Change Congress” T-shirt] That’s it.

So the second idea in the book is about what I want to call a hybrid. If you think about a commercial economy, like a grocery store where you go in and you buy things, and a sharing economy, Wikipedia where people create for the love of creating, not because they’re being paid – if you started paying editors for Wikipedia it’d probably be worse than it is right now – there’s an interesting new economy that’s increasingly defining the internet, what I call a hybrid. A hybrid is either a commercial economy leveraging a sharing economy to create value for commercial purposes. So think of Flickr; Flickr is a commercial company, but it’s building its commercial value out of sharing activities from people using the platform. Or it can be the other way around, it can be a sharing economy that realizes the only way it can survive is if it begins to bring in commercial revenue, so it tries to leverage a commercial economy inside it. We don’t have any good examples of that now, but organizations like NVIDIA (?) are trying to push that.

So the hybrid, once you see this, defines every interesting new business. Amazon is in many ways a hybrid because all the value of it comes from beyond just selling books, people voluntarily are giving their ideas and their reviews to Amazon, and that defines how you understand what the products are on Amazon. Second Life, same thing. Yelp, same thing. And increasingly businesses are realizing they need to figure out how to encourage the hybrid economy in a way that makes everybody happy.

Now the paradigm “hybrid”, 20 years ago, is the free software movement and the GNU/Linux operating system which was embraced by commercial entities and willingly given over by the sharing culture that produced it because they realized we needed commercial entities to support it if it was going to succeed. And I think what we’re seeing now is the same dynamic happening in the context of culture. Now, there will be radically different arguments about how this gets done. So think of two kinds of hybrids: one you call the Darth Vader hybrid. George Lucas has a remix site for Star Wars. You can go and get clips from the Star Wars films and upload your music and remix it. So basically they’ve got this 30 year old franchise, they’re trying to make it interesting again, so they’re giving kids the opportunity to remix the stuff. But if you read the terms of service, George Lucas owns all the remix rights, everything you create he owns. If you upload a song to his site, he has a perpetual worldwide free license to sell that song and make all the money he wants without giving you a dime. It’s kind of share-cropping in the digital age.

So that’s one kind of hybrid. My view is that that kind of hybrid is going to die, people are going to increasingly going to say – excuse me if there’s anybody that this in inappropriate for – fuck you to that kind of hybrid. That’s the appropriate response. But then there are other hybrids, think about Nine Inch Nails or Girl Talk, who are releasing content, explicitly encouraging people to do stuff with it, explicitly licensing them to do it with it, and licensing it in a way that guarantees the creators own the rights. They don’t own Girl Talk stuff, they don’t own Nine Inch Nails stuff, but they own their remix. They are creators, that’s the right of creators, and that kind of hybrid relationship I hope will fight to make sure it defines the future. So that’s idea two.

Idea three is really what inspired me to write the book, so one thing that you’ll be surprised at, I imagine, is that the book is dedicated to two people. One is an extraordinary scholar, a man named Lyman Ray Patterson, who in the 1960’s was writing all the stuff that we wrote in the 1990’s and 2000’s and didn’t know that he had written because we were bad scholars. He was a fantastic, extraordinary copyright scholar in the 1960’s writing about how this whole movement of extremism in copyright was going to destroy extraordinarily important parts of culture. So he’s one of the people I dedicated the book to.

I also dedicate the book to Jack Valenti, who as you know is the big president of the Motion Picture Association of America, and I dedicate it to him, because he, like Lyman Ray Patterson had an important role in teaching me about these issues. Lyman Ray Patterson’s role you understand, because that’s all the stuff I’ve talked about before, that copyright needs to be balanced. Valenti’s responsibility is a little bit different. Valenti, when I debated him first at Harvard, I was up there blathering on about the framers of the constitution and innovation and the right to create the right incentives, and all that sort of bullshit, and Valenti stood up and said, “You know, I went to Stanford, and I stood up in front of the kids at Stanford, and I said ‘How many of you download music for free?’, and 90% of the audience raised their hand.” Valenti said to them, “How can you steal this content?” And they said, “Well everybody’s doing it.” Valenti said at this debate, “How are we going to raise a generation to respect the law when they’re living their life against the law?” At the time he said this, I thought this is a ridiculous question, who cares about that? Let’s focus on incentives and the framers of the constitution and all that sort of stuff.

But after I published Free Culture, I had my first child. He’s now five, and I have a second child too. Valenti’s question increasingly disturbs me, because the thing I think is worse about this whole copyright war stuff, what Valenti used to call his own “terrorist war” (where apparently you guys are the terrorists), the thing that I hate most about this is that it does produce this generation that just lives life against the law, and they think to themselves, “What the hell? The law’s an idiot, and I’m just going to ignore it.” If they ignore it here, how many other places do they think they have to ignore it?

Now Valenti’s solution to this problem of course was to wage ever more effective war against the enemy, like find more ways to expel kids from college if they’re sharing music illegally or sue grandmas for downloading stuff on their computer. Let’s really ramp up the war to stamp out the bad behavior. And of course I think that’s an idiotic response to this issue. I think what we need to do is to sue for peace, to find a way to achieve the objectives of copyright, following the ideas of the EFF, to have a voluntary collective license, where the idea is of Terry Fisher to have a change in the copyright system, where we have revenues collected to pay out to artists on the basis of the popularity of their work, whatever. We need to move to a system where ordinary sensible, totally obvious behavior by people is not criminal. Because its being criminal is corrosive and destructive of extraordinarily important values in our culture, and there’s no reason the soul of a generation should be sacrificed so that Hollywood’s profits can be preserved. Because if we had done a decade ago what many people were talking about a decade ago, if we had adopted some of these compulsory licensing schemes of altering collective licensing schemes, the last ten years would have produced more money for artists – they’ve got nothing from peer-to-peer file-sharing – but they would have got something from this. It would have produced more innovation in businesses, it wouldn’t have been just the one or two Apples of the world who were able to strike deals with the record labels, it would have been anybody that would have been able to engage in this stuff. So more money for artists, more money for business, better for consumers, and a generation that wouldn’t have been raised thinking that breaking the law was the sort of thing they could do.

Now that’s a kind of boring father/law professor like thing that motivated me to write this book, but I think it’s extraordinarily important that you begin to defend your right to live life not against the law. Because what you want to do with digital technology should not be against the law. We just need to motivate a generation to help us change the law so that it’s not. So those are the three ideas in the book.

EMCEE: Great, thank you. So, I was there when you said you’re kind of moving on from this party. Every time somebody hears you’re writing a book remotely related to copyright, people are going to say, “Hey what about Change Congress?” How are your resolving this conflict between promoting Remix and working on Change Congress?

Right, so, I made this announcement in June of 2007, and this book was basically finished in June of 2007, it’s just the nature of the publishing industry that it’s now coming out. So this book is the end thinking of the work that I’ve done in space, and I’m happy to come out and talk about it because actually the movement that all the organizations out there and you guys have helped spur has much more traction and excitement around it than political reform does right now. So I can show up and have this number of people want to talk about this issue. It’s harder to get that in Congress right now. So I’m happy to be here and talk about it.

I’m still on the board of Creative Commons, which is still extraordinarily important to me. And I’m working very hard to continue to make it successful although I been very proud of how successful it’s been, even though I’ve stepped away as CEO and Chairman of the Board. Joey Ito is CEO, and Jimmy Wales is Chairman, and they’ve been doing a fantastic job in continuing it. You should look for an extraordinarily exciting announcement on October 15th about a new generation of Creative Commons integration, which will be fantastic. So that continues to be an important part of my life.

But the academic work and the activism work that I want to do is all around trying to motivate a generation of people to think about fundamental reform of Congress. I don’t know if you saw, but Rasmussen did a poll in July, and one in August, and found that 9% of the American public believe that Congress is doing a good or an excellent job. 9% – this is the first time in history that number has been single digit. More people favored the British Crown at the Revolution than are in favor of Congress today. But we don’t focus on the fact, that this – the most important institution in our democracy – is a bankrupt institution that has none of the credible support of the people that it needs to function.

It won’t be changed this week, but this business model has been a 10 year business from the very beginning. It’s a process that’s going to take a long time, and there are two ways it can happen. One is a happy reform story where we get a number of representatives and a whole bunch of challengers to commit to the principles of Change Congress, and then implement change. I think there’s a 20% chance that that’s the future. Then there’s another story which is that we try very hard to get it to happen, and there are some pretty dramatic moments of failure, and that motivates people to think about how this has to be changed from the outside. And already there are these constitutional convention people clamoring around Change Congress trying to get us to push for a constitutional convention. It’s way too early to talk about stuff like that. But the point is, whether it’s inside or outside, there’s no choice here; it just has to change.

And so we started a campaign this cycle basically the charge of which is to get your representative to take a stand. Just get your representative to say where he or she is on these issues. So we sent a letter out to every single representative and gave them a code where they could go to our site and say here’s where I stand. Most of them didn’t do anything. Then we launched a pester campaign, where we gave people tools to go out and start pestering them, you know, calling them or emailing them or writing them letters. And we right now have about a third of the candidates and congressman who have taken a stand. We’ve got five members of Congress who have now joined Change Congress as members, and it’s nicely balanced – there are 3 democrats and 2 republicans. I’m hoping by the end of this cycle we’ll have about 10. If we have 10 members, we’ll probably have 2 or 3 more who come in as challengers. So optimistically in this next Congress we’ll have 15 members. The way Congress works, if you have 40 members who are in a coalition, you can do almost anything. So, I think after 2 or 3 cycles of this, we can optimistically get to the point where we can make some pretty effective change inside Congress.
EMCEE: One thing I like about Change Congress is that you guys came up with an inventive way to start pushing and pestering. Do you want to talk about the 9 cents?

Right, so when the 9% idea came out, when in fact 9% of us supported Congress as doing a good or favorable job, we launched this campaign where every single contribution we made to a political candidate, whatever it’s going to be should be plus 9 cents, so if you want to give somebody $10, you give $10.09. So increasingly they begin to look at these 9 cents coming in and say what’s this about? And that creates a kind of grassroots recognition of the source of this problem.
EMCEE: One of the things I’m interested in, in your writing, particularly on your blog, is this conflict between this desire to have information for free and transparent, much in the way that Creative Commons works, and Change Congress works, and this can sometimes be in conflict with our intuitions of privacy. I was wondering if you wanted to talk about that in light of the recent blog posts you’ve had about TSA travel. I think a lot of people are curious about your thoughts on privacy because every day we find ourselves pushing the boundary and redefining the lines between what’s public and private information. And it’s a conflict I feel very close to being on the side of wanting more information.

Yeah, the privacy issue is extraordinarily hard for me. Because I think there’s a basic hole in the architecture of the internet right now. And that hole is that we don’t have an identity layer. What would that mean? It doesn’t mean that you can identify anybody at any time. What it means is that you have an easy way to create persona that get some kind of credentialed status that exists across domains, that is enough for whatever purpose that domain might have; that doesn’t require you to be fully identifying your social security number and your mother’s maiden name every time you sign up to some particular kind of site.

Now, there are great things trying to provide this. I think OpenID eventually might get to a place where it can provide this infrastructure, and if anything can do it, I think it should be OpenID. I think that the IdentityGang is developing a set of protocols for how this might be implemented that doesn’t require any central place to be controlling everything, but you choose who’s going to be managing certain aspects of your identity. I think the thing to recognize is that if we could be more intelligent about this architecture, while on the one hand it might facilitate the ability of our government to track down somebody violating the law better than it is right now, although I’m not sure that’s true – I think it’s pretty easy to track people down right now – the other thing to see is that it also enables people to protect their privacy much more effectively.

The system we’ve got right now is fundamentally broken, because, though there’s no requirement to show anything, basically if you want to have access to anything, you have to showing everything. And you have governments implementing identity protocols that basically say you’ve got a card that has all the information about you there accessible to anybody who wants to validate who you say you are. All of these architectures are just idiotic from the standpoint of how to protect privacy. But I think one of the reasons why we’re not making any progress is that, as far as privacy, I kind of think of myself as being part of this cabal of privacy nuts who are anxious to make any deal to give anything, because they don’t trust the government at all. And frankly, when the government violates the law, or gets companies to violate the law and then passes immunity statutes to immunize them, I don’t know why we should trust them. There’s no reason why anybody should be trusted in a world where there is no consequence for violating the rules. But I don’t see how we’re going to get to that place until we actually figure out an identity infrastructure that facilitates this more flexible identity.

EMCEE: Still on privacy, one writer that I got turned onto by you was David Brin, and his Transparency Society, I was wondering if you could explain how he might have influenced your thoughts on Change Congress and the future of democracy and how we look at privacy from within government.

I don’t know that Brin has had an effect. Brin’s great contribution here was actually not something I agree with, I think, but his great contribution was to get people to see that there was no way to stop the publicity that was going to be around everybody and everything they were doing, that technology was going to make it so that everything could be identified. And he wanted to argue that we should just give up on that and just learn to live life out in the open, as kind of a Charlie Nesson conception of what the world of privacy should look like. I don’t agree that we should give up like that. I agree with him that we’re not going to be able to stop the technology, but I do think we’re going to be able to effectively try to limit what people do with the data that they gather in this respect, and we ought to be doing that more. But I think there are certain domains where living in the open is what people ought to do. So in the Congress domain, I agree with you, this is exactly the norm that ought to govern what happens in Congress. Part of what Change Congress tries to push is more transparency, it’s the part that has been influenced by the Sunlight Foundation and MAPLight, but more transparency, because I think transparency will be very effective in getting sufficient reform.

EMCEE: Shifting back to the setting we’re in, where the large majority of our audience is students. One of the things that I think we’re interested in as a movement and in this conference is defining what sustainability means for us. Maybe I’m asking your opinion here, but 5 years from now, 10 years from now, Students for Free Culture is what? I’m curious from your perspective what you think that would be.

Well, I’ll tell you what I hope, and I don’t mean to say this is what you should do. Nelson helped launch this in the very beginning, I said it was very important that I not be part of the organization, because I didn’t want anybody to be unclear about the fact that this was an organization totally independent from anything that our world had done, and I don’t want to cross that line here.

But here’s what I hope: I hope Students for Free Culture starts picking some fights that teach the lesson that we want to teach. So I think the DRM campaign that was run, you know, where you start picketing Tower Records and passing out anti-DRM leaflets in conjunction with the Free Software Foundation, was fantastic. I think it’s that kind of fight that ought to happen. I think the obvious, low-hanging-fruit fight for the Students for Free Culture movement right now is to start having sit-ins in universities where they don’t adopt Open Access publishing rules. It’s ridiculous that scholars publish articles in journals that then charge 5, 10, 15 thousand dollars for people around the world to get access to it. I mean it’s no problem for Stanford or for Berkeley or for Harvard, but the developing world cannot get access to this stuff easily because of these extraordinarily idiotic 20th Century restrictions on access to knowledge. And the point is if you start having fights about stuff like that, people listen to the fight and see it as not about you trying to get something for free for yourself, cause you already have this stuff, the fee is already built into the price you pay as being a student. But they begin to see why the movement is about a set of principles that are bigger than just “I want to get music for free.”

So what I hope is that you begin to pick these fights, and organize a rally, and as people have discovered, especially in this place, Berkeley, it’s a lot of fun to organize fights around this. There’s a lot of parties that are involved. And that’s good for a movement. Fighting and parties – those things go well together, and they bring out the best in all of us, and I think you need more of them. This movement needs to be 5,000 people in a room in 5 years, and it needs to be 100 chapters around the world that are saying “These are the ideals that we’re fighting for,” and start embarrassing people who should know better. Professors are the perfect class of people to embarrass about this issue, because they’re wimps, they’ll cave quickly. And they have no good reason, they have no good justification for what they’re doing. And so you need to pick those battles. I would hope you have a strategic warfare division – I don’t know if you’re in charge of something like that – but you begin to decide where to launch these wars so that you get attention that focuses people on the right issues, and distinguishes this movement from the way it’s perceived in the world, which is that you guys just want to steal things to get things for free.

Today the Wallstreet Journal has an excerpt of 2,000 words from this book Remix. I was very happy they wanted to publish it. But the title, which I had no control over at all, the title is “In Defense of Piracy.” That’s the way we are perceived; we are perceived as people who want to justify stealing stuff, when that’s not at all what this movement is about. Think about the Pirate Party, which in Europe especially is doing a fantastic job of getting people to rethink this issue. I think unfortunately in America, most Americans don’t see the subtlety in the name, and so they’re confused, they think this is just about “How do I get something for free for me?” We’ve got to show how this is not about “for me”, it’s about “for culture”; it’s for something much more important than cheap music.

EMCEE: So before we open it up to questions, in terms of talking about principles and strategy, I think one thing that we’re confronted with frequently, especially in the shadow of the Free Software movement is the idea of drawing a line in the sand and having a coherent definition of what is Free Culture, and what isn’t Free Culture. Personally, I’m more of a big umbrella type of person. I’m interested in having a conversation about say the failure of Fair Use to distinguish between something being fair or not, and Orphaned Works, for example, as all being a part of the Free Culture movement, but I’m curious about what your thoughts are on the idea of lines in the sand in the Commons, as it were.

Well, I think we need lines in the sand; I think we need strong statements of principle; I think we need to be able to say “This is what’s right, and this is what’s not right.” What I don’t think we need is particular people who take it on themselves to say “I’m going to tell you what Free Culture is and what Free Culture isn’t.” I think we need that to come out of movements like this. My own attitude about certain questions as they come along is that I have my view, and I want to hear what other people think about this view, and I’m quite open to the idea that my view turns out to be wrong about these issues.

But I think what has to happen is there needs to be a grassroots recognition that we have to come to identify the principles that will guide us. I called my book Free Culture because I believe in the kind of inspiration that Richard Stallman brought to the Free Software movement. I do think it’s about values; it’s about what’s right and what’s wrong. And I do support the idea of getting people to recognize not how this is a nice compromise with business; it’s about defining what’s important for a culture. So that’s why I believe in the Free Culture movement, not in an Open Culture movement, whatever that would be. But I don’t think anybody is as entitled in this movement as Richard was in the Free Software movement to say what the rules are. None of us has that right. And so unfortunately we don’t have the kind of Moses figure, or the Savior to guide us. What we have is a bunch of people who are trying to figure out what the right answer is. And what we need to be is tolerant of that debate. Not tolerant of people who don’t want to stand up for principle –we don’t need that in the movement – but tolerant of the recognition that there are different ways to look at these issues, and let’s have a conversation about how to get to the right answer.

Sra: There was a Q&A following this session, but unfortunately my camera was out of recording space. Sorry :(

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Culture and Copyright

I'll be posting the next transcript from the Free Culture Conference this evening, but in the meantime, I'd like to point you to a great article from Cory Doctorow called Why I Copyfight. Here's a bit from the article:

Copyright law valorizes copying as a rare and noteworthy event. On the Internet, copying is automatic, massive, instantaneous, free, and constant. Clip a Dilbert cartoon and stick it on your office door and you're not violating copyright. Take a picture of your office door and put it on your homepage so that the same co-workers can see it, and you've violated copyright law, and since copyright law treats copying as such a rarified activity, it assesses penalties that run to the hundreds of thousands of dollars for each act of infringement.

There's a word for all the stuff we do with creative works — all the conversing, retelling, singing, acting out, drawing, and thinking: we call it culture.

Culture's old. It's older than copyright.

The existence of culture is why copyright is valuable. The fact that we have a bottomless appetite for songs to sing together, for stories to share, for art to see and add to our visual vocabulary is the reason that people will pay money for these things.

Let me say that again: the reason copyright exists is because culture creates a market for creative works. If there was no market for creative works, there'd be no reason to care about copyright.

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Thursday, November 13, 2008

Free Culture Conference 2008: Pamela Samuelson on Copyright Reform

Spanish translation of the transcript (thanks Jose!)

The following is a transcription of Pamela Samuelson's keynote talk on Copyright Reform from the 2008 Free Culture Conference at Berkeley. Whether or not you are particularly interested in the law, Copyright is very relevant to all of us in this media age, and I really hope you will take interest. If you are interested, be sure to check out some of Pamela Samuelson's papers here.

I have lightly edited this transcript for readability, since spoken language doesn't tend to come across as well in writing, but the content and meaning are unchanged. The talk was about 30 minutes, so it should take you about 10-15 minutes to read. Enjoy!


Pamela Samuelson on Copyright Reform
Free Culture Conference, Berkeley 2008.

Thank you for the invitation to speak at this event. It’s very nice to meet some of the people at Berkeley who are involved in the Free Culture projects. I really would encourage you to interact with those of us at the law school who are interested in these issues. That includes Jason Schultz and Molly Van Houweling and me, and of course Brian Carver at the Berkeley Information School. I think we have some community here; we have a good group to work with students who are interested in these issues. Also, I want to thank all of you for sticking around to hear a talk on such a beautiful day in Berkeley. It’s really moving to me that you would spend time wanting to listen to a talk on Copyright Reform when there are lots of other things that you could do with your time.

I want to talk just a couple of minutes about why I think copyright reform is needed, then I want to talk about some different kinds of ways that copyright reform can happen. And then I particularly want to emphasize what the Free Culture movement can do, because I regard the Free Culture movement as really the vanguard of copyright reform in the United States, so I think you have a central role to play in moving this dialog forward. First a couple of things about reform.

The Copyright Act that we have in the United States today was enacted by Congress in 1976 to become effective in 1978. But it was actually drafted in the early 1960’s based on a set of studies that were done in the mid-1950’s. So the fundamental framework of the statute that we have today essentially reflects a kind of 1950’s modality. It just can’t possibly work well given the incredible changes in technology that have happened over time. So we have lots and lots of debates about whether something that’s, say, a reproduction of a work in the random access memory of a computer, is it a reproduction of the work and a copy that infringes the right? You know, it’s like we don’t know how to think about this well.

I think one reason that it’s really important to think about copyright reform is because really pretty much every 40 years there has been copyright reform. So it’s time to really get that conversation started. And a lot of what we need to do is move to better principals about what a good copyright law would look like. It shouldn’t be as long – current copyright law is 200 pages long, 300 if you buy certain editions – and it’s too complicated. I can’t make my way through about half the provisions because they’re so incomprehensible. Maybe it was ok that copyright law was really abstruse at a time when the only people who needed to know anything about it were the industry lawyers who essentially were mediating these kind of inter-industry disputes. If they knew what it meant and nobody else did, who cared, as long as it just applied to them. But now that copyright law is really affecting and regulating our daily activities, we the people deserve a copyright law that’s simple, that’s fair, that’s balanced, and that gets us to a much better way of thinking about what good role copyright law can play.

Like some of the earlier speakers, I worry a lot about the implications of copyright for the activities that all of you do on a daily basis. There’s a really fun essay that was written by one of my colleagues in Copyright, John Tehranian, entitled, “Infringement Nation.” What John does in the article is go through the average day of a professor (seems to be modeled on himself). He does a bunch of stuff on the internet, he goes to the gym, he works out with his tattoos on his shoulders, he plays loud music in his car, and he sings Happy Birthday to people in a restaurant, and by the time he’s finished with his average day, he counts 83 acts of plausible infringement, because some sort of copying was done. And he multiplies that by the maximum statutory damages – $150,000 per infringed work. So, just in one day, even without any kind of peer-to-peer file-sharing going on, John calculates 12.5 million dollars of potential liability for those ordinary infringing acts, and then of course, that’s just for one day, so if you multiply it times the number of days in a year, you end up with 4.5 billion dollars in potential statutory damages for an average day of your life, and that’s only one person. So, when you think about that, you sort of say, “Boy this thing is really out of whack! We really need to get into a better shape.” I could give you dozens of other examples, and actually some of the other people here today have given you other examples, but I want to concentrate instead on how to think about a reform landscape for copyright.

Now there are lots of different actors that can have some impact on copyright reform. The most obvious one is Congress, and I’ll come back and talk about Congress in a minute. Another place where copyright reform can happen is through the courts, through the decisions that judges make in some of these cases that people have been talking about earlier today. The Copyright Office and copyright policy-making by the executive branch is another potential place where copyright reform can happen. But a lot of the movement in copyright reform is happening in private initiatives, and that’s where people like you come in; that’s where the Free Culture movement, I think, will have an important, but not exclusive, role in moving this ball forward.

Now what does the Constitution do? It gives Congress the power to promote progress of science and the useful arts by conferring on authors exclusive rights for limited times. And the point of this, as the Supreme Court confirmed for a couple hundred years, is not to put the maximum amount of money into the hands of people who have created works or publishers who commercially make them available, but rather the primary consideration, the primary goal of the system is to promote the progress of science and the dissemination of knowledge that the public can have access to. So this kind of public access to knowledge is really what we’re trying to do. The grant of exclusive rights to authors is actually a means to that end. So we should tailor it so they have enough incentive to create, but make sure that we’re not giving so many rights that in fact it’s blocking access for the public rather than promoting it.

If you look at the Constitution and you look at the statements by the courts on what copyright is supposed to be about, you sort of say, “What happened?” Because Congress does seem to have abdicated its responsibility to pay attention to how the copyright law affects the public interest. And it’s done that over a period of years largely because the copyright industry people will come and say, “Oh this is so complicated, and you guys don’t have any expertise on this, so let us write the rules, and then once we get it straight amongst ourselves, we’ll bring it back to you and you can pass it, and everything will be fine.” And again, maybe that was not such a good thing ever, but it certainly isn’t such a good thing when now it’s our lives and the things that we do on a day-to-day basis that are being affected, and the doors are really shut to our kind of input into this process.

Economists use the language of public choice to explain what kinds of problems happen in the legislature where you have one group that is going to get concentrated benefits by passage of a certain kind of legislation, and where there are distributed costs, where the cost to every single individual who may be affected by it is relatively small and kind of difficult to assess. Where you have concentrated benefits and distributed costs, what you often find is that those concentrated industries, like the copyright industry, are very good at getting money to members of Congress, especially people who are on the key committees, and persuading them to pass laws favorable to them. And because most of the constituents aren’t saying, “Hey, this is going to affect us too!”, then there isn’t somebody out there standing up for the rest of us. So if Hollywood says “Do this, do this, do this,” and nobody else is saying anything, then the legislature thinks, “They’ll give me money if I do this, and nobody else seems to care, so why shouldn’t I do it?” So I think that helps to explain why we end up with some pretty lopsided legislation being enacted.

And the question is, can we overcome the public choice problems that now beset copyright policy-making in Washington DC? I think we can, but I don’t think that’s going to happen anytime soon. One of the things that I think has to happen if we’re going to do that is that there’s got to be some grass roots kind of organizations that are actually representing interests of people like you. And you’ve got to be willing to say, “This matters to me,” so that Congress will stop saying, “Well the only people who seem to care about this is Hollywood, and if they want it, and they have a big industry, why not do it?”

I think that there are other examples of where public choice problems in other arenas have been overcome by the public getting active, by organizations like the Electronic Frontier Foundation or Creative Commons that end up having a political movement associated with them. But you’re going to have to have people who are willing to let their legislators know that this matters and that balance rules really are important before we can really expect much of it to happen in Congress, although occasionally something good happens, but not really very often.

So since Congress doesn’t seem a very promising venue at least at this point, what next? Well, one of the things you can do is fix things a little bit through the courts. A lot of what you’ve been hearing about today is Fair Use reform, and there are examples as Jason [Schultz] mentioned. Sometimes if somebody threatens you by saying that what you’re doing is infringing, but, gosh, you’ve made this transformative remix and it’s really cool, then standing up for it and saying, “Okay, I’m going to get the court to declare that this is in fact a Fair Use.” And now that there are clinics at Stanford and Berkeley and American University and Harvard, and a number of other schools, there are actually people who would represent you without you having to pay money for a lawyer.

There are actually lots and lots of parts of copyright law that can be fixed through the courts. Fair Use is probably the most predominant one, but for example another is statutory damages. I’m working on a project trying to suggest that courts should develop guidelines about when and what kinds of statutory damages can be awarded in copyright cases where the damages would be a relatively small multiple over actual damages. Think about that case that was mentioned a little bit earlier. Some members of the jury wanted to award $750 dollars per infringed song – 24 songs. Some of them wanted to do $150,000 per song, and they settled for $9,250. Okay, now what was the principle guiding that? It doesn’t make any sense, especially given that she could have bought those songs on iTunes for $24. So, you know, maybe 3 times the actual damages would be, you know, $75? Maybe that’s a more reasonable sum than $220,000. There are things that judges can do to say, “Look, this is really out of whack, and juries ought not to be able to do it.”

I’m working on a project right now to try to persuade judges that they should look at Fair Use cases in terms of the policy interests that are at stake, and so in cases that involve free expression and free speech, they ought to be worried about things like chilling effects on free speech and freedom of expression, in cases involving parody, criticism, and misuses of copyright to try to censor speech, and I have a bunch of other clusters that I won’t bother you with now, but I really think this is actually a way that you can get more good decisions out of courts and make Fair Use more predictable. That’s one of my goals, because it’s the unpredictability of Fair Use that has, I think, the greatest chilling effect. So those are some things that can be done through the courts.

Now another venue for potential reform efforts is actually the Copyright Office or some part of the executive branch. The Copyright Office hasn’t exactly been the most proactive in the reform area, but they’ve actually done a couple of good things. On distance education I think they came up with some good proposals, I think their orphaned work study is actually really good, they’ve been pressing orphaned works legislation that would allow you, if you made some effort to find the copyright owner and couldn’t, to go ahead and use it, or to put it up on the internet, and maybe you wouldn’t get any damages against you if the work was in fact an orphaned work. And they’ve done a couple of other things that I think are actually pretty good.

But a lot of what needs to happen is actually reform of the Copyright Office itself. And so some part of what a group I’m working with is looking into is, are there things that you can do with the Copyright Office that would make things better? And one idea is, for example, to have a public interests ombudsman, somebody inside the Copyright Office whose job it was to think about how this is going to affect ordinary people. Another thing that could be done is more empirical work. Before you pass new legislation that’s going to make things stricter, maybe you ought to really do some empirical work and not just take the copyright industry’s viewpoint straight off. Maybe you should get some advice about what to do. And maybe there should even be some kind of small claims court where if you think you have a Fair Use, instead of having to hire a lawyer you can go through this adjudication process, and for a small amount of money be able to get a determination, “Yeah, that’s a Fair Use, go ahead and do it.” So those are some of the things that we’re looking into.

Private initiatives come in a lot of different flavors, and here’s actually the place where I think we really have to start, and work really hard at. Bravo to Creative Commons, and Science Commons, for really taking proactive steps to allow licensing that many of you find very amenable. The National Academy of Sciences is about to start a copyright reform project and they’ve been thinking about what kinds of ways, especially in an economic thinking, can be brought to bear on copyright policy, because right now lots of inefficiencies are out there. What can we do to make things better? That’s a venue that’s interested in it. Public Knowledge and the EFF have been working on some copyright reform projects too.

One thing that actually got started a couple of years ago and then didn’t take off, but maybe it’s time for it again, is a group called They began to develop a consumer bill of rights in copyright. So, what should we be able to do? I think one of the things that folks like you should be able to help with is this question of “What should we be able to do? What should be the user’s rights in the copyright system?” Because you’re not going to expect the copyright owners to try to develop that kind of list, but maybe that’s something that you and groups like and Public Knowledge or EFF could try to do, and that I think would be a really good thing.

I’m actually doing some things myself, I’ve started convening a group of about 20-some people to meet on a regular basis to have conversations about copyright reform. What we’ve done is started making a list of things that we agree on, things that we don’t exactly agree on, and then we’re starting to articulate principals of a good copyright law, which, if we’re able to articulate, may actually be the basis for a simple model copyright law that I think would balance interests better than the law that we’ve got right now. So that’s my particular effort to do it.

I think that I want to end my talk with a reiteration of the point earlier, which is, you guys are in the vanguard. It’s wonderful that you just go out and create things and play with things and try new technologies, build new technologies, enjoy and engage, and contribute to culture without asking for lawyers. So bravo to you for doing that. You know, there haven’t been lawsuits brought by the copyright owners against remixes that have been shown on places like YouTube, and I think part of it is that – I’ve talked to people at some of the major movie studios – they think that’s Fair Use too! And even if some of them don’t, if it’s tolerated for a long enough time, it becomes a Fair Use de facto.

And so those of you who are engaged in the kind of playful engagement with culture, the law will eventually catch up to the kind of engagement and playfulness that you’re doing, and allow it. I think of Thomas Jefferson and James Madison occasionally and I think if they could see what you guys are doing, they would just be astonished. They would just say, “This is so cool!” Because what the founders wanted was not for big mass media publishers to be able to dominate the landscape, but rather what they wanted was for ordinary people of the United States to be educated, literate, to contribute to culture, and to participate in democratic discourse. So I think you’re following the founder’s intentions more than the copyright industries are at this point.

Thank you very much.


Q: In this category that you seem to think has the most promise, private initiatives, where would you put the initiatives or activities of large/private corporations in the copyright industry who themselves are trying to figure out how to behave and how to stake claims? I’m thinking about what I assume is to be an impending settlement between the publishers/authors guild and Google, which seems to me would have quite a bit of influence over how books are to be accessed over the internet. In that sense – this is going to be a private settlement, I don’t think it’s going to go to a court ruling, but maybe it will – that could have all kinds of effects, because the actors are so large, and I think that’s the kind of private set of decisions that have public effects, so what can be done around those kind of processes by groups that care about Free Culture?

A: Well, one has to say that copyright reform is kind of an uphill battle. And some days when I think about it I despair, but most days I just say, look, we can do better, and that means you have to say that there are some things out there happening in terms of private settlements that, if we were in a different environment, might not happen. And maybe sometimes some of those people are actually wishing for a better situation too, so I think that there are untapped resources out there in the private sector that would support copyright reform, if the conversation wasn’t wholly dominated by Hollywood. I’ve had some conversations with people elsewhere in the IT industry, and not just Google and the like, where people actually say, “I’m hungering for a better and more balanced copyright law.” In the meantime, they have business decisions that they have to make, and sometimes they make them in a way that doesn’t auger well for the copyright reforms we might want. But I don’t think we can let those kinds of things set us back from the larger task.

Q: You said that you were working with some other people to come up with simple principles for new copyright law, could you go over what some of those principles might be?

A: The group is still working, and the kind of agreement that we have right now is that nobody can speak for the group. We’ve been meeting for heading toward a year and a half, and we’ve had very productive meetings, and it’s a very respectful and good, substantive conversation. Like I say, we have agreed upon some things, but we haven’t articulated a set of principals yet. The assignment we gave one another this summer was to articulate some principals which we’ll talk about in November, and then at that meeting we may find some that we can agree on and some that we can’t. Regardless of whether this group is able to go forward with principles, and I’ll say this is not going to be that simple, because in addition to having some law professors who think sort of like I do, we’ve got some people from some other content industries who think differently. But I’m going forward with this no matter what.

Q: So you’re not at liberty to say any of the principles you’ve decided on; are you able to say any principles that you’ve been contentious on?

A: No, well, I think there’s some things that are easy to agree on, and some things that are not easy to agree on. One of the principles that I think we all agree on is that Fair Use is a critically important part of copyright law, and the only complaint that we have is that Fair Use is too unpredictable right now. So I’ve been proposing what I’m calling unbundling Fair Uses into various policy clusters, and if you look at the Fair Use case law in terms of the policies and those clusters, I think it becomes more coherent, it becomes more predictable, and it also doesn’t entirely lose the flexibility of a good law. An area where we’re going to have a little difficulty reaching consensus is with stuff like secondary liability. The secondary liability of ISPs or Google or other kinds of intermediaries for infringing acts that might be done by users – that’s an area that’s pretty hotly contested, and it’s going to be harder to reach consensus. But I think if you pitch the principle at the right level, then people might fight over how that principle is applied in certain situations, but I think it’s reasonably likely that we can find most principles where people can basically agree with each other. That’s what I mean.

Q: It seems that you take a very interventionist approach to dealing with these questions. Is that rare in your field? What do other legal scholars think, for instance, about judge education projects?

A: I was led to this reform project idea by the fact that I’ve been in the field of copyright law now more than 25 years and I’m getting tired of complaining. Complain, complain, complain. I think, if I’m so complainy about this thing, then that must mean that implicitly, somewhere in my head, I have an idea of what good copyright law would look like. And so if I think that’s true, then it’s incumbent upon me to more proactively try to articulate those things. I’ll speak to any audience, I’ll speak to judges, I’ll speak to the legislature, I’ll speak to the copyright office, I’ll speak to people in industry, and of course I love speaking to groups like this, this is a pleasure, not a duty. But if you’re going to change copyright law, you’ve got to intervene.

Q: You talked a little bit about how there’s a lot of infringement claims a person can have walking around throughout their lives, singing Happy Birthday, all sorts of things. Is there a way we can rat on our friends and show the world that we think we’re violating on a day-to-day basis? Are there any filings in courts that we can do on each other to kind of make it clear that they’re ignoring all these possible claims? Cause, you know, I’d rat on all of you guys. I’d stab you in the back. I just want to know if I can do that.

A: No, because frankly, except for people who are doing peer-to-peer file sharing, there’s very little interest on the part of major industries in going after individuals. For this Infringement Nation and these activities to be challenged, it would take dozens of copyright owners. This is a place where the cost of actually getting all these clients is so large in relation to what you would reasonably expect to get that a market really can’t form. So, to me, this is an example where you’ve just got to exempt the personal uses. Not say that personal use means that you can do anything – because, “hey, it’s for me!” – but the broad array of things that we do on a day-to-day basis interacting with stuff just ought to be exempt from copyright law, period. Now there are a couple of ways that you can do that, one is to create, as some countries have done, a personal use exception to copyright liability. Whatever little copies you might make, whatever distributions you might make, are exempt, partly because people might respect your privacy, and partly because it’s just not cost effective to enforce copyright at that level. Another way you can do it, is what the United States has mostly been doing, which is to say that it’s Fair Use. I don’t think John Tehranian thinks that all of those acts are infringing. He thinks that they’re all Fair Use. But the article was written to make a rhetorical point. So he was not encouraging you to start counting how may infringements you are engaged in daily, or that you should say, “He’s doing more than I am so he should get hit before me.” I don’t think that’s going to be constructive. But we’re trying to talk about a mass movement to educate Congress and policy-makers about how we’ve got to have a copyright law that works for everybody. Right now we don’t, and I think that that’s a message we ought to be carrying forward.

Q: Can we get the notes from your copyright reform meetings?

A: No. I’m not that open.

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Wednesday, November 12, 2008

Free Culture Conference 2008

As you know, last month I attended the 2008 Free Culture Conference at UC Berkeley. The first day of the conference was filled with panels and talks by people whose fields of expertise are relevant to the concerns of the Free Culture movement. The second day was filled with discussion groups that were organized on-the-fly by conference attendees and organizers, most of whom were members of national chapters of Students for Free Culture.

A mysterious giant metal sculpture on the UC Berkeley campus

As a participant in both days of the conference, I found the first day to be incredibly inspiring. It was particularly helpful to me to hear from attorneys who spoke about Free Culture and Copyright Reform. Larry Lessig, a professor of law at Stanford University, who has authored books such as Free Culture, Remix, and The Future of Ideas, and who is the leader of the Change Congress movement, spoke about remix culture. And Pamela Samuelson, a professor of law at UC Berkeley gave a speech about her specialty, Copyright Reform. To see that there are people in the legal industry (albeit the academic legal industry, which is admittedly different from the practicing legal industry) who are interested in asserting Copyright as a means of protecting not only the rights of artists, but also the rights of those who use art, is very encouraging to me.

UC Berkeley is covered with beautiful trees and streams.

In contrast, I found the second day of the conference to be rather discouraging. I felt that most of the participants in the discussions have yet to strike a reasonable balance between their free-for-all ideals and the reality of commerce. I got the impression that many of the participants were completely anti-intellectual property, which is really a rather naive perspective. It's easy to dismiss IP, that is, until you create something that has commercial viability, right? Then all of a sudden you are concenred about your rights as an artist. So overall I felt that there's not enough realism amongst the Students for Free Culture. Maybe they just need more experience with life before they can achieve a clearer perspective.

A bizarre glass mosaic sculpture in a small Berkeley art gallery.

But overall I really enjoyed my experience at the conference. I feel like there is hope that I can keep my vision of a more balanced Copyright system while still pursuing a career in the law. I also feel like there's a lot of educating that needs to be done to the public about IP rights and why they are important.

The SF Bay from the International House at UC Berkeley. Blurry, but pretty.

In the next two days I will post transcripts of the talks by Larry Lessig and Pamela Samuelson, which I recorded on my Flip Mino. I may also post the videos if I can get them to upload in one piece, but the film quality isn't great and I had to play dodge the wiggling heads while recording, so it can be a little boring to watch. The talks are great, though, and I hope you will enjoy them as much as I did.

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Tuesday, November 11, 2008

Ugly Foreign Speakers

We've all heard of the term "Ugly American", an American who makes an ass of himself in a foreign country by doing things like talking too loudly, expecting everyone to understand English, and acting entitled. I've witnessed Ugly Americans in action during my time spent in Germany, and it's not pretty. In fact, during my first study abroad in Berlin, I was slightly ashamed to let people know I was American because of the reputation of Ugly Americans. (During my second study abroad in Kiel, I was no longer ashamed of being an American, because [a] I didn't choose my nationality, [b] I don't fancy myself an Ugly American, and [c] America may have its problems, but every other country has problems too.)

Well, I've noticed that Americans may not be the only people who qualify as Ugly Americans. I'm thinking in particular about my Indian neighbors next door who talk so loudly I can hear them through my bedroom walls when they are in their living room. I can also identify them when I'm sitting in my living room and they're ascending the stairs in the courtyard outside. And worst of all, they've taken to standing on the front walkway of my apartment complex, which just so happens to be right outside my bedroom window, at all hours of the night and day, talking and laughing loudly.

Now, I've had problems with other neighbors talking beneath my window at 4:AM before, but these guys are noticeably louder. I also had never before heard anyone through my bedroom walls before these guys moved in, and I've lived in this apartment for 6 years. I've gone over and knocked on their door before, asking them to quiet down late at night, and I've opened my window to ask them to quiet down when they stand outside my window, and they do oblige, but the problem continues.

I think the problem really boils down to the fact that they are speaking a minority language, and so they turn off the normal conscious volume meter that people employ when they know they can be overheard, and thus understood. But since it's a pretty good bet that no one else is going to understand their speech, the usual impetus for monitoring their volume is absent.

I have noticed that people in America speaking languages other than English are often louder than their English-speaking counterparts. Memorably, E and I were recently in the foyer of a Greek restaurant waiting to be seated, and we were sitting on a couch amongst a large group of Greek-speakers talking very loudly around us. It was rather distracting and uncomfortable. I think if these same people were instead Americans in the foyer of a Parisian restaurant, the French patrons would have easily thought of them as Ugly Americans.

So I think this problem isn't really a matter of someone's nationality so much as a matter of whether a person is mindlessly failing to monitor their volume because they think no one can understand them. What do you think? Anyone else noticed this?

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Monday, November 10, 2008


With the weather beginning its rapid descent into cold, miserable winter, it is important to find adequate ways to keep warm.

Last year, for instance, I was converted to the leg warmer camp. They may look stupid when you're doing step aerobics, but they're great underneath your jeans on a blustery winter day. Nobody has to know about your fashion indiscretions. I took the sleeves off one of Ian's old shrunken wool sweaters to make my leg warmers (why pay $20 for a store-bought pair when there are perfectly good sweaters lying around?). An old pair of soccer socks with the feet cut off works well too.

I've also purchased a few yards of the softest baby fleece I've ever felt so I can get started on making my BlankCape. (It's a blanket, it's a cape; It's a BlankCape!)

Laugh all you want, but obviously I'm not the only person who wants to keep warm while still being functional. Check out the Slanket:
It's a blanket with sleeves so you can stay warm while knitting, crocheting, reading, or video gaming. Now why didn't I think of that? Genius!

What's your favorite way of keeping warm during the winter?

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Wednesday, November 5, 2008

Change in Season

The autumn leaves have not yet fallen from the trees, and now they are blanketed in a thick layer of the Salt Lake valley's first major snowfall of the season. But the sun has peeked below the clouds in the west, so in the next hour and a half of remaining sunlight the snow cover will likely recede and autumn will return. For a little while, at least.

I'm not going to write a lot about the election results, because a lot of people have already done it much better than I would, and if you are a regular Bunsnip follower, you could already guess my reaction anyway. In short, I am both utterly elated in our grand step forward in closing the equality divide with the election of Barack Obama, and deeply disappointed in our grand step backward in closing the equality divide with California's passage of Proposition 8.

We still have so very much progress to make, but the seasons will continue to change in spite of us.

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Monday, November 3, 2008

A Public Service Anouncement to People who Call Offices

When you call someone at their place of employment, and the receptionist informs you that the person is not in and offers to transfer you to their voicemail, don't say no to the voicemail and then try to leave a message with the receptionist.

At least at our offices, we have voicemail so that the receptionist doesn't have to take your messages. I don't care if you fear technology, or if you think the message is more likely to be received if you give it to me instead of the voicemail. Quite the opposite, it is less likely to be received, because I have to write it down and then type up an email to send to the attorney, and I just may not remember to do that depending on how busy I am at the moment. Granted, I usually get your message off, but even then, the first thing the attorneys do when they come back is listen to their voicemail. They don't always get to email right away. And email from the admin staff is usually low priority to them anyway, because if it were important, we'd just acost them at their office.

If you have already left one or more voicemail messages and the attorney hasn't gotten back to you, then he is either busy with higher priority issues, or you didn't leave an explicit enough reason for him to get back to you, or he is avoiding you for some reason. In any case, you are no more likely to get your call returned if you leave your message with me than if you leave another voicemail or just trust your earlier messages to do the trick. And don't take your frustration that the attorney hasn't gotten back to you out on me. I have nothing to do with that.

This has been a public service announcement on behalf of administrative staff everywhere. Thank you for your consideration.

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