Article on Groklaw about the new wave of JPG patent legislation. Some background info on the JPG patents is at the FFII pages on well-documented cases of software patent effects.
Slashdot points to an article by Greg Taylor of Electronic Frontiers Australia titled "The Council of Europe Cybercrime Convention -
A civil liberties perspective"
In that article, Taylor writes:
"1.5 Access to Encryption Keys
In the last few years, after considerable international debate over surveillance, privacy and electronic commerce, the use of encryption has been liberalized, except in a few authoritarian governments such as China and Russia. Clause 4 of Article 19 (Search and Seizure of Stored Computer Data) is a step backwards by seemingly requiring that countries adopt laws that can force users to provide their encryption keys and the plain text of the encrypted files. So far, only a few countries, such as Singapore, Malaysia, India and the UK, have implemented such provisions in their laws. In those countries, police have the power to fine and imprison users who do not provide the keys or the plaintext of files or communications to police. It should be noted that the UK Government faced significant opposition over its initiative. Such approaches raise issues involving the right against self-incrimination, which is respected in many countries worldwide. "
"4. Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to order any person who has knowledge about the functioning of the computer system or measures applied to protect the computer data therein to provide, as is reasonable, the necessary information, to enable the undertaking of the measures referred to in paragraphs 1 and 2."
That may indeed lead to a duty to disclose encryption keys. However, it is a different question if that duty, if it is introduced according to the Treaty, trumps the right against self-incrimination as guaranteed for example in the Fifth Amendment of the American Constitution, which requires that no person "shall be compelled in any criminal case to be a witness against himself."
In a 1996 paper Greg S. Sergienko explains that in America, the Fifth Amendment would give a suspect the right to refuse handing over encryption keys.
I agree with that analysis.
Therefore, I think that any legislation based on Article 19 of the Cybercrime Treaty would only enable law enforcement authorities to request encryption keys from third parties who run no risk to be prosecuted themselves. Article 19 should not be constructed as requiring self-incrimination.
VerifiedVoting reports that the paperless Diebold voting machines will probably be decertified in California after California's Voting Systems Panel voted unanimously for a recommendation to do so.
The Commission of the European Union has published a Communication on copyright collecting societies, titled "The Management of Copyright and Related Rights in the Internal Market". The press release is here.
The Commission observes that copyright based industry contribute more than 5 percent of Community-wide GNP.
It then calls for interoperability of DRM measures, which is also a goal of industry initiatives in the field, and considers issueing a recommendation to reinforce interoperability. The Commission also addresses the potential for DRM to block more uses by technology than are blocked by law (page 10):
"In this respect, the Commission is also under a duty to examine within the context of the Article 12 Contact Committee, whether acts permitted by law are being adversely affected by the use of effective technological measures (so called 'technological lock-up')."
They also think that EU legislation on collecting societies is necessary to satisfy the need for Community-wide licensing, also with a view to lowering administrative costs by enabling more competition between collecting societies.
Interested parties are requested to comment to the Commission by e-mail before June 21.
I got some anonymous comments to one of my software patent posts of Wednesday last week.
The comments seem to assume that the public actually gets some meaningful disclosure from software patents. I don't share that idea.
The system could work that way. In a recent article in the German language Gewerblicher Rechtsschutz und Urheberrecht (2004, Page 198) the authors say that the patent system should require disclosure of source code when someone files for a software patent.
That is not, however, how things are done right now.
The comment also says that I "misunderstand the inherent nature of copyright and patents as applied to software."
That is not correct. I do know the difference between patents and copyright, thank you. My point was that since there is already copyright protection, there is no need for patent protection on top of that. There is no reason why software should qualify for double protection.
But, then on the other side, I was actually wrong. I overlooked the fact that there is also trade secret protection in undisclosed source code. Software - and only software - gets the triple protection of patent law, copyright law, and trade secret law. Microsoft can file their ten patents an average week and still not disclose their source code.
The Foundation for a Free Information Infrastructure (FFII) is a non-profit association registered in Munich (Germany). (Disclosure: I am a member of the Advisory Board).
There is also a United Kingdom volunteer group of the FFII.
Now a similar foundation has started some activity in the US. The Public Patent Foundation wants to represent the public's interest against wrongly issued patents and unsound patent policy. Their latest news is a challenge to a patent on FAT technology held by Microsoft.
Until now the League for Programming Freedom seems to have been the organisation closest to the goals of the FFII in the US. Maybe the new Public Patent Foundation can work in the same direction, and even consider cooperating with the FFII in one way or another.
Press release describing the first time a court has decided on a claim based on violation of the GPL. The Munich district court (Germany) granted a preliminary injunction against Sitecom Germany GmbH because they are distributing GPL code without disclosing the source and without including the GPL.
Link found at Groklaw.
Axel H. Horns writes in his recent FAQ on "computer-implemented inventions":
Q5: What is the most important purpose of the patent system today?
A5: Patents are instruments to secure fair market values for non-obvious technical problem solutions ("inventions"). This is also valid regarding such inventions for which the realisation requires the usage of a programmed computer or computer network:
He then goes on to dismiss our side of the debate as a bunch of communists, which is one reason why I wrote a few lines about the undisputable facts regarding the personal financial interest he and other patent attorneys might have in this debate.
(Update: Horns kindly clarifies that he did not mean communism when he wrote "lobbying against modern global capitalism". I agree with his point that there is no benefit to be found for either side in the debate in using labels like "communism", and my original point is that that is also true for the label "anti-capitalism", or "anti-patent" for that matter.)
If I dismissed everything Horns writes as motivated by greed, that would be unfair in exactly the same way as his dismissing our side as "lobbying against modern global capitalism". I call everybody's attention to this unfairness but refuse to reply in kind. Again, I do not assume that everything a patent attorney writes is worthless just because he might have a financial interest in the debate.
And his question is actually quite important and interesting. I am going to try to have a swing at it myself and then I will address his answer.
There are several purposes associated with the costs in patent attorneys' fees, patent offices and restrictions of everybody's liberty that come with having a patent system.
One of them is the idea that the patent system helps disclosing technology. Without patent protection, people would keep their technology secret. Society pays the costs mentioned above to get the disclosure of technology in return.
For software patents, that does not seem to be an interesting deal for society. As far as I know, people who actually do development work do not research prior art at the patent office. The recent paper in support of software patents by Ronald J. Mann also says that no one the author spoke to researched patent prior art.
If anything, software patents are generally regarded as the single most effective threat against open source software development. If that is true and open source projects will be taken down or crippled all around the place, society will actually get less open information on technology than without a patent system. The open source development method seems to be far more effective for the goal of disclosing technology than the patent system.
Any gain for society in disclosing of software technology is dubious at best, and probably far outweighed by the potential damage to a process of disclosure that everyone knows is really working.
Another purpose of the patent system is to reward development. Without such reward, there might be a lack of incentives to invest the necessary ressources to develop great new technology.
However, with software there already is copyright protection. That is quite enough to assure the ability to make a profit. If our side is wrong and software can be protected by both copyright and patents, then that would be the only such case. Books, movies, music are protected only by copyright. You can't get a patent on the idea "young sorcerer's adventures at magician's high school". So why do we need a patent on the idea of "adding a third dimension to menus by grouping them as tabbed palettes one behind the other"?
Therefore the above purposes of the patent system do not seem to give much of a good reason for society to bear the costs in freedom and money associated with them.
Now for a short discussion of Horns' answer. He says that the purpose is to "secure fair market values".
I think it is exactly the other way around. Any patent disables the market mechanism. If some company has a patent on some drug with a large market, generic makers can't compete as long as the patent is valid. That, in turn enables the patent holder to charge more than the price that would result if competition was not restricted by the patent. The difference between the price such charged and the price resulting from a working market mechanism is the value of the patent.
Then, again, maybe I didn't understand the answer correctly. Maybe Horns wants to say that the market price without patents would not be "fair".
That leads to another criticism. What exactly is a "fair" reward for the patent holder? And, if there is any way to describe the dollar amount of a "fair" reward, how exactly does the patent system guarantee that the patent holder receives that "fair" amount and neither less nor more than would be "fair"?
The answer to these questions doesn't seem to be easy. I am agnostic on the point. While I think it might be possible that the patent system as a whole does work to assure "fair" rewards, I don't think it is easy to prove or disprove this with hard economic data.
Anyway, even accepting that assuring a "fair" reward for the development of technology is the purpose of the system, in the case of software that is already assured by copyright protection.
filed by Microsoft on avarage, says this article by Mary Jo Foley at microsoft-watch.com (link credit: Dave Winer).
Just another reason why people need to pay attention to the fight going on right now in Europe.
Ronald J. Mann has published a paper with that title on SSRN (link credit: Axel H. Horns).
I happen to believe that there are so many software patents around that nobody actually trying to observe them all can get any programming work done, which is about what Shapiro teaches us in his paper about "Navigating the Patent Thicket".
So I was interested to have a look at why I might be wrong.
Mann's argument:
He has talked to a lot of people actually involved in the use of software patents in America. One of his results is that none of the start-up firms he has spoken to do any prior-art searches before beginning development of their products. (Page 53).
I have no problem whatsoever agreeing with Mann here.
Of course nobody does any prior-art searches. There are two reasons for that. Patent information is utterly useless for people who actually want to develop software, and is deliberately kept useless by those drafting the patents, for example by filing software listing as a paper copy. And, more importantly, actually researching prior art leads to bad faith if one finds anything, and stronger sanctions in the infringement lawsuit later on.
However, if the problem of software patents could easily be solved just by ignoring them, nobody would worry. Just shutting your eyes and pretending not to see the patent thicket does not remove its existence.
Mann then proceeds to explain that infringing software patents is no big deal because IBM is very unlikely to actually sue infringers (Page 53).
Again, this is only a denial of reality.
Of course, if every software patent holder started enforcing every patent, the whole software industry would collapse just in the same way as it would if everybody actually started researching prior-art and asking for permission all around the place to actually get some development work done.
But, while it is nice to see that IBM doesn't enforce all its patents all if the time, that changes nothing about the fact that they could do so whenever they happen to feel like it.
The fact that no nation has actually used a thermonuclear weapon of mass destruction for the last fifty years does not mean that those weapons are a myth. In exactly the same way, the fact that not all software patents are enforced does not mean that they are a myth.
After spending several pages on explaining why IBM won't enforce software patents, Mann then tells us that IBM or Microsoft are going to enforce their software patents after all, by demanding royalties from just about any software project, since anyone can expect to be violating some of the big player's patents (Pages 57 to 58).
That obviously is in contradiction to what he just told us a few pages back. Either IBM won't enforce any software patents or they will ask for royalties. It would be nice if the author could make up his mind.
Mann tells us then that even if IBM can ask any other software developer to pay royalties, that still doesn't qualify as a "patent thicket", since developers are still able to secure the necessary licenses (Page 58). To quote:
On the contrary, a patent thicket would exist only if industry licensing practices were such that firms in the industry commonly were unable to agree on terms for licenses and thus retreated from the field of innovation."
Obviously, if you can get licenses, you don't need to worry about violating patents. And the Shapiro paper quoted above describes cross-licenses and patent pools as strategies for dealing with patent thickets.
Again, the fact that you can navigate the patent thicket by getting licenses doesn't negate its existence.
As a result of looking at Mann's paper, I don't find anything not compatible with my belief that the large number of software patents granted already would shut down the software industry completely if all patents were enforced at all time (with the exception, of course, of large companies able to pay $440 million in settlement fees for patent violations).
Some of the people advocating software patents, business model patents and Internet patents might be suspected to do so because of their own personal financial interest.
For example, European patent attorneys received an additional turnover of about 500 million Euro from the illegal granting of 30.000 software patents. The Commission estimates the agent's fees for one European patent as about 17.000 Euro. Multiplying by 30.000 gives 510 million.
So our side might be inclined to dismiss everything coming from a patent attorney as purely motivated by personal greed without even looking at what they are saying. I am not referring to any special person here, though this is just another great opportunity to point out what an excellent blog Axel H. Horns is running.
That, however, would be wrong in two different ways.
One: It would be too simple an approach. While it might be possible, even plausible, that a patent attorney could think about the effect of his positions on the amount of his business, it won't do to disqualify everything they say in wholesale without even reading. In a democracy, everybody has a voice. While it won't do to have patent policy set only by those with a personal financial interest in its expansion, it also won't do to exclude those most experienced and most directly affected by patent policy from its discussion.
Two: Actually, some patent attorneys (Axel H. Horns being one of them) understand that the debate on software patents has the potential to develop into "the big threat to come" . Expanding the limits of patentability might bring some short term additional business to patent attorneys. But that comes at a cost of added cricism and more potential for "earthquakes".
Therefore, it would be premature to assume that unlimited patent inflation is in the business interest of patent attorneys. They want more business. But they also need stability. "Patent explosion" won't help that goal.
Which in turn means that it would be premature for our side to assume that all patent attorneys only compete on finding the best way to confuse the issues in order to feed their own personal bottom line.
That, of course, doesn't exclude that some patent attorneys might actually advocate blowing up all limits of patentability in order to make an extra buck.
Which would be kind of ironic, since the ultimate result of that would be to blow up all legitimacy of and support for the patent system as such in the process.
Somehow I missed linking to the September 2003 article "Patent Riots of 2003" by John C. Dvorak in PC Magazine. Fortunately, the FFII main press release page has it in its list of annotated links.
The author's conclusion:
I have been relentlessly looking at these and other issues and must conclude that the way things are currently rigged, the big companies can easily lord it over the small fry unless the small fry are also loaded. This is neither a level playing field nor a productive environment.
What do I tell people who see this as a problem? I just tell them to patent every idea they can and never produce any sort of product. It looks impossible to develop anything in this environment except patents and lawsuits. Yeah, like this is going to fix the economy. My conclusion: support the FFII.
For the occasion of the main demonstration against software patents in Brussels today, I will try to contribute an idea or two to the discussion.
I hope this will be of more use than just closing down my website.
Microsoft has settled a patent infringement lawsuit with Intertrust with a $440 million license deal. Actually Philips and Sony seem to be on the receiving side of those $440 million, since they bought out Intertrust last year.
Slashdot thread here.
I am sceptical of software patents and support the FFII in its opposition to legalizing them in Europe.
But whatever your position in that debate is, there sure is a lot of money involved. The stakes are high, as this case shows again clearly. One more reason to pay attention to this fight, which is nearing a decisive phase now in the European Union.
Axel H. Horns has recently posted a FAQ on computer-implemented inventions (software patents) supporting wider patentability of "computer-implemented inventions" (link credit: Rainer Langenhan). He is critical of the more restrictive view the European Union Parliament adopted last year. which he called an "earthquake".
In the context of this $440 million settlement, I want to highlight just one statement in his FAQ which I agree completely with:
(One of the answers to question 4): However, in particular some smaller companies or freelancer programmers may suffer difficulties in economic terms when attempting to allocate sufficient ressources to take care of patent infringement problems.
Indeed. If "sufficient ressources" means $440 million, very few companies will be able to "take care of patent infringement problems".
So, yes, it is only natural that those without the deep pockets and large lawyer armies needed to deal with software patents should be inclined to question the advisability of exploding all limits to patentability, removing their ability to compete in the process.
has a new page up on the fight about the proposed software patent Directive. They are calling for a net strike on April 14th.
This article in Wired gives a few recent examples of weird software patents awarded in America: Technology to "erase unwanted data from a computer", filtering spam and viruses on a remote server, assigning the name to a website (a similar patent has lead to criminal fraud investigations against the patent holder in Germany, as blogged here and here (in German) before), and the idea of using cookies.
Of course, no one should be surprised by this endless stream of absurdity. If there are no meaningful limits to patentability left, this is only what should be expected from a system clearly broken.
Link credit: Dave Winer.
Some new developments in the amazing American war against all foreigners:
Michael Froomkin points to this article by Carl Hiaasen in the Miami Herald. Apparently, there are still foreigners married to American citizens who have not been kicked out of Formerly Free Country, or left before being kicked out. One of them is a Norwegian citizen named Kari Rein. She is married to an American and has been living and working in Oregon for the last 15 years.
That seems to have been a mistake. Not marrying an American, but choosing to live there. Now she has been detained for three weeks after coming back from a vacation to Norway, and Mr. Ashcroft wants her out of the country.
Is Ms. Rein a danger to America's safety? Will her continuing to work and raise her family there doom the Homeland?
Apparently, she has been convicted and fined $1.200 for raising some marihuana plants in 1993. That is eleven years ago.
It doesn't make much sense to start deportation procedures against her for that old conviction now. Common sense revolts at the idea.
And the whole EU should get mad as hell at this kind of abuse. I sure am.
For starters, the United States of America should be moved from Annex II to Annex I of Regulation 539/2001 in retaliation.
For those readers not familiar with that Regulation, that would mean that Americans would need a visa for every visit to the EU. And while we're at it, let's also require fingerprints, mugshots, retina scans, a return ticket, a $20.000 deposit, and DNA samples from every American citizen at the border.
Americans, after all, think it's a cool idea to require fingerprints and mugshots from European tourists.
Well, not all Americans. Bruce Schneier objects, as I have blogged before. But the US State Department doesn't listen to him.
In the real world, all of the above retaliation very likely won't happen. One case like this is probably just not worth the trouble, even if it does seem to be quite extreme.
However, there is a real cost involved in treating Europeans in this mean-spirited, xenophobic way. I sure hope Mr. Ashcroft's department reconsiders this case. But if they insist, we will find out soon enough how high that cost will be.
I, for one, am not pleased.
This article by Robert X. Cringely is discussed at Slashdot. The author says that the record-setting EU fine against Microsoft is too small to achieve anything. My comment to this on Slashdot:
Anyone assuming that the EU commission can be ignored safely because they don't have strong enough sanctions available might be in for a nasty surprise.
$600 million might be not ever so much compared to Microsoft's profits.
However, if they stubbornly insist on violating European competition law, for example by not following the specific orders about unbundling and making available information, the EU could rather quickly fine them again. Maybe a billion this time.
And if that doesn't help, another two billion a few weeks later. A billion here, a billion there, and before you know it, you are talking about real money.
From May 1st on, the Commission also has the power to impose periodic penalty payments under Article 24 of Regulation 1/2003 on top of any additional fines.
The system would obviously be broken if anyone making a profit of more than 10 percent of turnover by violating competition law could get away with cashing the difference between that profit and the fine.
We will see what happens. I don't agree with the idea that EU competition law can be safely ignored.
This is a first installment of some comments to Larry Lessig's new book "Free Culture". I have more to say later, but don't want to delay posting until I have everything worked out.
I will focus the time and number of words I want to use for this review on points where I don't agree with Lessig, even though that might be a difficult task, since anyone reading this blog will have noticed that my positions are rather similar to his. Numbers in brackets indicate the page or pages in the book I am referring to.
Even from a position rather close to Lessig I have found a lot of things to discuss. I present them in the order of importance I attach to them.
1. "Use Until Someone Complains"
This is one of Lessig's proposals for new legislation. He wants to go back to a system where copyright holders need to mark and register their works. However, in Lessig's view, the copyright should not be lost in the case of a violation of the marking requirement, but instead the copyright holder's position should be reduced. People could use unmarked content until someone complains.
I don't know if Lessig would advocate the same consequence for the failure of registrating a work.
However, I think this approach is interesting for two reasons.
One is the fact that I have proposed something similar with a "no sale doctrine". That proposal was to give the copyright holder a right to collect damages only if he is selling the work himself, since only in this case he is actually losing any economic advantage as a consequence of the copyright violation. The similarity lies in the fact that works with big commercial value that stay on the market could be expected to be registered and marked under Lessig's proposal, so they would enjoy the full range of available sanctions, while no one would bother to register and mark the remaining larger part of works without commercial value.
The other reason is that current American copyright law actually already adopts exactly this principle. There is still a voluntary registration system in American law. And 17 USC 412 states that statutory damages and attorney's fees can only be awarded when the work is registered or registration is made within three months after publication. That obviously means stronger sanctions for registered works. Exactly as Lessig calls for.
2. Piracy
Lessig devotes too much of his space to discussing the term "piracy".
Talking of "piracy" when discussing copyright is misleading. As Stallman has pointed out early on, a "pirate" is someone who robs and kills people on the high sea. Copyright violations are not violent, and they kill nobody.
Using that term is the equivalent of calling copyright holders "slave traders" (instead of "mafia", as Lessig does on pages 52 and 191).
A "slave trader" is someone who uses violence to take away the freedom of a human being. That is much more serious than using copyright law to take away the freedom of some part of culture. So calling a copyright holder "slave trader" would be misleading exactly in the same way as calling copyright violations "piracy" is.
Since Lessig gives us the right to write derivative works, I could take his text and turn it around. I could write a long chapter about "slave traders". Just to make that idea clear, let's start with the remarks about film on pages 53 to 55 as an example. In this derivative book, I would point out that the power of "slave traders" did not always rule over the world of movies. While the slave traders had a firm grip on movie production on the East Coast, Hollywood was far enough away to escape their enforcement. Some slaves made it to freedom in the west.
I leave it as an exercise for the reader to mirror the rest of the "Piracy" chapters. It's probable possible. And I think the result would be a stronger criticism of "copyright extremists". For just one more example take the "Piracy I" chapter at pages 63 to 66. The mirrored argument would be: All across the world a lot of people are violating the rights of the slave traders. They set ideas free against the law. This is just plain wrong, wrong, wrong, and there is no excuse for it.
Obviously, this argument against copyright violations gets weaker in the mirror version. However, my point here is that talking about "piracy" should be avoided, since the term is misleading and lacking in precision, exactly in the same way (with sides turned around) as the term "slave trader" would be.
To counter the "piracy" rhetoric of copyright holders, it would be perfectly enough to point to what Stallman said long ago, and then to refuse falling for that rhetorical weapon. All the points in the chapters about "pirates and "piracy" could have been made in the same way while using adequate terms as "copyright violation", or in the case of the part about the movie industry moving to California, "patent violation".
It is bad strategy for a book fighting against copyright extremism to use the misleading rhetorical weapons of your opponent again and again and again.
There are also some other terms I don't agree with. Lessig uses the word "war" frequently (pages 10, 11, 17, 18, 56, 73, 74, 120, 166, 169, 173, 179, 181, 183, 184, 194, 199, 200, 205, 207, 211, 254, 255, 262, 296, 300). If you want to see what a war is, look at the video footage of American airplanes bombing Iraqi kids for no particular reason. Or look at the Civil War on "free labor". The discussion about copyright protection is not a war, not by a long shot.
And calling one side (the copyright holders) "copyright warriors" (pages 18, 79, 83, 84, 124, 125, 126, 128, 168, 255, 276) comes with a logical fallacy built in. If you talk about a war in this context, obviously both sides would be warriors. "Enemies of freedom" would do just fine, if you want to use some colorful rhetoric to describe people with extremist copyright inflation agendas.
3. The tiny fraction
In the chapter about the Eldred case, Lessig says that only a "tiny fraction" of works have a continuing commercial value (page 225).
But copyright protection is not limited to that tiny fraction. All other works are burdened as well.
This, in Lessig's opinion, is a reason to call for shorter copyright protection terms.
I think it would have been of interest for Lessig to note that exactly the opposite argument was made by Mark Twain about a hundred years ago. Twain called for perpetual copyright. He did not believe in the wisdom of taking away an author's right without compensation. And the reason he gave was exactly the one Lessig gives here: Since there are only extremely few works that have any commercial value left at the end even of the much shorter protection terms one hundred years ago, there is not much point in requiring the law to take away the remaining value in these extreme exceptions. Twain illustrated his point by comparing it to a bill limiting families to twenty-two children by one mother, something just about as rare as a copyright with commercial value left after 42 years.
I disagree with both Lessig and Twain on this point. I think it is exactly the tiny fraction that is most important.
Of all the works created and protected by copyright, only a tiny fraction has any commercial value at the time of creation. And only a tiny fraction of that tiny fraction has any commercial value after a hundred years have passed (which might be the date of 70 years after the death of the author in many cases). All the effort associated with granting a monopoly right to the copyright holder makes sense only for that tiny fraction of works with commercial value.
But both in terms of commercial value and in terms of cultural influence, these works tend to be most important. How many dollars is the copyright for Micky Mouse worth?
And exactly because Twain's works and Disney's works have so much dollar value and so much cultural influence, any discussion of copyright terms should be based on what is the right compromise for the rich and famous, not what might be right for the obscure orphans.
Lessig and Twain come to opposite conclusions from the same observation. Lessig would probably explain that by pointing out the development of the Internet. Since it is so cheap to publish with the Internet, more works can be published now than a hundred years ago. So the restrictions on obscure orphans are a much larger burden now. Many orphans could expect being adopted by someone like Mr. Eldred if they were free from these burdens.
It is right to say that the costs of publishing on the Internet are dramatically lower than the costs of publishing a book in Twain's world.
That means that the tiny fraction of works with commercial value will become less tiny. Whatever income can be achieved by publishing on the Internet needs to be only very small to cover the costs and leave a profit. Or people like Mr. Eldred might adopt orphans for the pure pleasure of spreading culture if there is only a small investment necessary to do so.
That probably means that the tiny fraction has become much larger. Twain's original argument might have lost its empirical base.
But if that is so, my position that copyright law needs to base its protection term on what is right for works worth publishing to someone becomes all the more necessary.
4. The Meaning of the Title
is ambigious. It is well known that "free software" can mean free as in beer or free as in speech. The same is true here. But there is one more way to understand the title. "Free" might be a verb, so the title might have the meaning "setting culture free".
Lessig explains in the preface that he is talking about free culture with "free" as in free speech.
But he also gives some advice on how to set culture free at the end of the book, so the "free" in the title might actually be read as a verb as well.
However, I had actually expected to find a stronger parallel to the free labor movement. Lessig said last year that he wanted to "evoke a link" to this. I can't find "free labor" anywhere in the book now, so that doesn't seem to have worked out as announced at the time.
5. Minor points on style and precision
(88) "(However convincing the claim that ...)"
This should be: (However convincing the claim _is_ that ...)
(192) "The effect is to produce an overregulated culture, just as the
effect of too much control in the market is to produce an overregulated-regulated market."
I don't understand the term "overregulated-regulated". This should probably just be "overregulated".
(232) "The economists' brief was signed by seventeen economists, including five Nobel Prize winners, including Ronald Coase, James Buchanan, Milton Freedman, Kenneth Arrow, and George Akerlof."
The second "including" seems to be redundant at best. I understand that Lessig is listing all five Nobel prize winners by name here.
However, writing "including" twice indicates that the five people listed up are at least partially different from the five Nobel prize winners.
Probably the text should lose the second "including".
(185): "Can common sense recognize the absurdity in a world where the maximum fine for downloading two songs off the Internet is more than the fine for a doctor's negligently butchering a patient?"
Damages are not "fines".
(146) "Once a video was in the market-place, the "first-sale doctrine" would free the seller to use the video as he wished,"
This wording is unfortunate. Obviously, the "first-sale" doctrine doesn't give the "seller" any freedom, but the buyer. In this case, the buyers are sellers to third parties (consumers) themselves, which is why they are referred to as "sellers" here. However, in the context of the "first-sale doctrine" this is confusing. That confusion could be avoided by writing "the 'first-sale doctrine' would free the buyer of the video to use it as she wished, including ..."
(184) "Technology has thus given us an opportunity to do something with culture that has only ever been possible for individuals in small groups ..."
I would prefer: "that has traditionally only been possible". In contrast, "only ever" seems to be confusing. But I am not sure about this.
Aaron Swartz has set up a Wiki site for Larry Lessig's latest book here.
I just did a minor edit there of this line on page 88 in the book:
(However convincing the claim _is_ that ...)
I have also started collecting reviews available on the Internet on this page in the Wiki.