In what might be the first major newspaper editorial ever written in praise of a lawyer, The UK Guardian joined a chorus of voices calling for Stanford law Professor Larry Lessig to play a role in the next U.S. administration.

Superlawyer (geek-tastic photo by ekai, cc-by-nc-sa

Larry Lessig: Superlawyer (geek-tastic photo by ekai, cc-by-nc-sa

Consider the Guardian piece together with Lessig’s own timely op-ed in today’s NYT (following a similar piece in the WSJ two weeks ago) and it’s hard not to wonder if the politicized professor isn’t pursuing a careful game plan.

In both of his articles, Lessig urges bi-partisan action towards reforming the over-reaching intellectual property regulations of the United States. By publishing them now, he also positions himself as an ideal candidate to enact such views when a new President takes office in 2009.

If I’m right, then these high-profile op-eds will be seen as crucial tactical moves in a Lessig bid to become the country’s first cabinet-level “IP Czar.” The position will be mandatory for the next administration as a result of the so-called PRO-IP Act that was signed last week. The act was passed (against President Bush’s wishes) as a result of heavy lobbying on the part of the notorious film and recording industry groups, the MPAA and RIAA.

Even though the two industry groups had their usual agenda of strict rights and tough enforcement in mind when they spurred lawmakers to create the post, no justice could be more poetic than to have the job go to Lessig, a long time critic of the lobby groups’ unbalanced and draconian approach.

I may be exaggerating when I call this a campaign on Lessig’s part as he is already a very well-connected advisor to Barack Obama on IP and technology policy issues and has also been mentioned as a potential CTO in a hypothetical Obama administration. Nevertheless, the articles confirm that if Obama winds up in the White House, I would not be surprised to see Lessig join him.

Ugh. I’ve been ranting about this idea for a while, but now it’s actually come to pass. Thank the folks at RIAA, MPAA, the entertainment industry lobbyists, and their hired guns friends in Congress (ahem, Conyers, Berman, Leahy, Specter, et al) for this criminally inefficient use of government funds during a time of economic crisis. Even George Bush and the Department of Justice tried to avoid passing this one, but to no avail.

Gizmodo and CNet have the story.

Art Brodsky, Communications Director of Public Knowledge has the understated quote: “It would’ve been nice to have something to benefit the public and artists instead of big media companies.”

Sigh. Dream on.

intellectual property, da? (image from Gizmodo)

intellectual property, da? (image from Gizmodo)

Of Lessig and Muxtape

October 14, 2008

Larry Lessig’s WSJ Op-ed “In Defense of Piracy” is quickly making the rounds of inboxes via a few email lists I’m on, suggesting that re-posting it here will not be news to anybody.

What I thought I’d mention in conjunction with Lessig’s piece however, is a link and some thoughts on yet another sad chapter in the entertainment industry’s long brutal fight against creativity and non-traditional business models online.

Former Berkman Intern Zach McCune first brought Muxtape – a site dedicated to facilitate music playlist sharing – to my attention sometime during the summer.

An undergraduate and the victim of an RIAA file-sharing lawsuit, Zach is a grizzled veteran of the copyright wars. He and I agreed that while Muxtape was a beautiful idea, it was only a matter of time before it got mangled by the legal machinery of the music industry.

The truth has turned out to be somehow more complex and twisted than we had ever imagined.

Muxtape (c) 2008, Muxtape LLC

Muxtape (c) 2008, Muxtape LLC

Muxtape founder Justin Ouellette’s September 25 post to the site breaks down the last few months in some detail. Here are the highlights:

  • “In the end, Muxtape’s legality was moot.”
  • “In May I had my first meeting with a major label, Universal Music Group.”
  • “The gentlemen I met at Universal were incredibly receptive and tactful; I didn’t have to sell them on why Muxtape was good for them, they knew it was cool and just wanted to get paid.”
  • “Things were going well. I spent the next two months talking with investors, designing the next phases of the site itself, and supervising the negotiations.”
  • “The first red flag came in August…the talk shifted to things like guaranteed placement and “marketing opportunities.” I was denied the possibility of releasing a mobile version of Muxtape. My flexibility was being constricted.”
  • “…on August 15th, I received…a complaint from the RIAA.”
  • “…on Monday when I wasn’t able to produce the documentation Amazon wanted (or even get someone from the RIAA on the phone), the servers were shut down and I was locked out of the account.”
  • “…the RIAA moves quite autonomously from their label parents and that the understanding I had with them didn’t necessarily carry over.”
  • “And so I made one of the hardest decisions I’ve ever faced: I walked away from the licensing deals. They had become too complex for a site founded on simplicity, too restrictive and hostile to continue to innovate the way I wanted to.”
  • “Muxtape is relaunching as a service exclusively for bands…”
  • “The new Muxtape will allow bands to upload their own music and offer an embeddable player that works anywhere on the web, in addition to the original muxtape format.”

Ouellete’s experience with Muxtape demonstrates that the actions of the RIAA constitute an egregious, anti-competitive abuse of the American legal system. Perhaps the most troubling aspect of the story is the fact that they effectively shut down Ouellete’s business while several of their constituents were in the process of negotiating with him (indeed, the takedown episode looks like a sorry excuse for a bargaining tactic).

When is congress going to stand up to these goons? At the moment, our elected representatives are too busy passing the PRO-IP act, yet another gift of federal enforcement resources to the content industry (against the wishes of the Department of Justice!) at the same time as the US economy struggles to avoid a free-fall.

Haven’t written about ACTA in a little while, but I couldn’t help myself from responding to this piece on the Intellectual Asset Magazine website.

Taking a short-term perspective shared by many large IP owning firms, the author Joff Wild argues:

My view is that countries in which IP is a very valuable asset are perfectly entitled to get together to work out ways in which it can be better protected.

The problem with this argument, and with much of the ACTA proceedings thus far, is that the countries involved have not integrated the competing interests of stakeholders into the negotiation processes in an effective way.

Even if you, like Joff, are not compelled by the claim that ACTA will be bad for global governance, bad for developing countries, and bad for global equality (which it almost certainly will), it is crucial to recognize that many of the most important and innovative firms in the U.S. and Europe are also likely to suffer from this agreement.

Don’t take my word for it, though.

Check out this letter recently submitted by AT&T, Amazon.com, Computer and Communications Industry Association (CCIA), Consumer Electronics Association, eBay, Information Technology Association of America, Internet Commerce Coalition, NetCoalition, US Internet Service Provider Association, US Telecom Ass., Verizon Communications, and Yahoo! Inc.

The letter is addressed to US Trade Representative Susan Schwab and leaves no doubt that these Telecom and IT giants do not appreciate the cavalier IP extremism on offer from the ACTA proponents thus far (all emphases are mine):

We appreciate your objective of protecting the intellectual property of American
rightsholders from infringement overseas. However…there is a very real possibility that an agreement that would require signatories to increase penalties for “counterfeiting” and “piracy” could be used to challenge American companies engaging in online practices that are entirely legal in the U.S., that bring enormous benefit to U.S. consumers, and that increase U.S. exports.

and later:

…because ACTA risks having such an adverse impact on intermediaries operating
in full compliance with U.S. law, the negotiating process should be as open and
transparent as possible
.

and last but not least:

…given the importance and complexity of the issues under discussion, we urge you
to proceed with the negotiations at a more deliberate pace
. It is critical that there be
sufficient time to ensure that the agreement is in the broad national interest.

Unless Schwab, the USTR office, and other negotiating parties recognize this reality soon, the results of their well-intentioned actions will be bad for the Internet economy, bad for innovative industries, and generally bad for society as a whole.

If, as Wild puts it, ACTA faces “a long and tortuous path to ratification” that might be the best news yet about this half-baked proposition.

Mark Harris filed a request with the New Zealand Ministry of Economic Development (MED) to release all documents pertaining to the ongoing ACTA negotiations.

Here’s what happened:

The Ministry of Economic Development has released just 13 out of 91 documents relating to its negotiation of a controversial international Anti-Counterfeiting Trade Agreement (ACTA) after an official information request.

Consultant Mark Harris made a request for “any and all information” the MED holds on ACTA. In response, MED identified 91 documents falling within the ambit of the request. The department has supplied Harris with just 13 of these and some parts of most of have been withheld.

The disclosure was mostly denied because it is considered likely to “prejudice the entrusting of information to the Government of New Zealand on a basis of confidence by the government of any other country or any agency of such a government.”

I haven’t had a chance to look through the docs yet, but it will be very interesting to find out if there’s any new information.

The real question, of course, is what’s in the rest of those 91 documents and why can’t the negotiating parties be transparent about this process?

Monika Ermert has filed another insightful piece on ACTA over at Intellectual Property Watch. She discusses the latest round of secret negotiations in Washington; compares the statements of the negotiating states on the progress of the agreement; and lays out a number of critical perspectives emerging from private industry and non-governmental groups that don’t trust a secret negotiation process to represent the rights, interests, and complexities of the many issues involved.

Professor Geist’s latest update on ACTA shenanigans in Canada came out on July 28, in The Toronto Star.

You really should go read the whole thing, but here are my two favorite chunks:

What [Canadian Industry Minister Jim] Prentice did not reveal is that officials have been developing plans to establish an “insider” group comprised solely of government departments and industry lobby groups that would be provided with special access to treaty documentation and discussion.

The decision to create a two-track approach for ACTA consultations appears to have been deliberate. The same documents discuss the prospect a public track that would include a general public consultation (which was held in April) along with the insider group that would be privy to treaty information

there is absolutely no representation of the public interest — no privacy representation despite the obvious privacy implications of the treaty (the Office of the Privacy Commissioner of Canada was not included on the government invitee list), no consumer representation despite the effects on consumer interests, and no civil liberties representation on a treaty that could fundamentally alter Canadian civil rights.

The government documents indicate that members would engage in “in-depth exchanges on technical negotiating issues” and therefore be required to sign confidentiality agreements in order to participate.

This is egregious stuff. Kudos to Geist for breaking the story – and unfortunate that it hasn’t gotten much play in the international press.

I also have to wonder whether this formalized two tier approach been pursued elsewhere?

FOIA request anyone?

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