Lessig on Viacom v YouTube inviting copyright chaos

Larry Lessig has been warning of the potentially destabilising effects of the Viacom v YouTube lawsuit.

"The Grokster case thus sent a clear message to lawyers everywhere: You get two bites at the copyright policy-making apple, one in Congress and one in the courts. But in Congress, you need hundreds of votes. In the courts, you need just five.

Viacom has now accepted this invitation from the Supreme Court. The core of its case centers on the “safe harbor” provision of the 1998 Digital Millennium Copyright Act. The provision, a compromise among a wide range of interests, was intended to protect copyright owners while making it possible for Internet businesses to avoid crippling copyright liability. As applied to YouTube, the provision immunizes the company from liability for material posted by its users, so long as it takes steps to remove infringing material soon after it is notified by the copyright owner...

...the Viacom argument goes, YouTube has shifted the burden of monitoring that infringement onto the victim of that infringement — namely, Viacom.

But it wasn’t YouTube that engineered this shift. It was the Digital Millennium Copyright Act. As the statute plainly states, a provider (like YouTube) need not monitor its service or affirmatively seek facts indicating infringing activity. That burden, instead, rests on the copyright owner...

The Internet will now face years of uncertainty before this fundamental question about the meaning of a decade-old legislative deal gets resolved."

Patenting genes

Somehow I missed this in the NYT last month, Michael Crichton complaining about gene patents. Thanks to Michael Carrol for the link.

Update: Perspective of Andrew Chin, associate professor at N. Carolina and Kevin Noonan at Patent Docs.

CC Learn

I learn from James Boyle that the Creative Commons folks are launching a fantastic new initiative, CC Learn. I'm sure he won't mind me reproducing his email here:

"I have two favours to ask. Thanks to funding from the Hewlett and Macarthur Foundations, Creative Commons is launching a new division called CC Learn, which will be devoted to open educational material and repositories - kindergarten through lifelong learning. CC Learn's goal is to break down the barriers - whether legal, technical or cultural - between different collections of open educational content. Our goal is to make material more "interoperable," to speed up the virtuous cycle of use, experimentation and reuse, to spread the word about the value of open educational content, and to change the culture of repositories to one focused on "helping build a usable network of content worldwide" rather than "helping build the stuff on our site." Please help us spread the news! Second, we need an Executive Director with experience in education to run the new division. The person would be located in San Francisco, working with the astounding CC staff. Details are here. http://creativecommons.org/about/opportunities#ccl Please pass this information along to the networks you are a part of and encourage qualified people to apply. Save the world and advance learning through open content, in San Francisco, while surrounded by extremely cool people.. What more could one want?

This is a really exciting initiative. Imagine a global network of open and free educational content, with curricula customized to different states or countries, with experimentation across multiple sites and multiple platforms, so that someone else can find things to do with my content that I never thought of... Imagine bringing into the open educational content community hundreds of thousands of teachers, students and volunteers. Imagine pursuing ease of discovery and use of educational material with the same ingenuity and dedication that we invest in making e-commerce systems work well or in allowing teenagers to flirt with each other on social networking sites.. Many of the pieces are in place, and there are great people working on the issue already, but there is a lot to do. Please help us by passing this along. (And if you can help fund it or donate to support it, so much the better!) "

Actually, James would be the ideal candidate to lead this project. I wonder if Duke University would be prepared to grant him a lengthy sabbatical to that end? As he says: imagine a global network of open and free educational content, with experimentation across multiple sites and multiple platforms, so that someone else can find things to do with my content that I never thought of... Imagine bringing into the open educational content community hundreds of thousands of teachers, students and volunteers...

In addition, imagine the mass of people failed by conventional education who would get their first real shot at an education... imagine people with dyslexia, dyspraxia, autism or a whole range of 'learning difficulties', learning styles or untapped cognitive gifts having the facility, through multimedia technologies, to become engaged with educational content in ways that were never possible before... imagine small isolated village communities in the developing world with Ndiyo wireless networks and/or windup Negroponte laptops making connections with people in other parts of the world... imagine the capacity to put people in touch with people that is fundamentally what real education is all about... imagine what a child growing up in a urban western suburb could learn from a child in a nomadic African community... imagine the barriers to conventional education - the cost of books, infrastructure like transport, schools etc. - getting broken down or simply bypassed... imagine the potential for personalisation (whilst bearing in mind Cass Sunstein's republic.com concerns) especially attractive to the Jerry Bruner constructivist school of thought (which basically holds that each of constructs our own reality)... imagine the potential for constructing, creating, and supporting, activities around the content enriched by multiple cultural perspectives rather than constrained by the local, national or regional norms... imagine enabling people to develop the personal skills to mine this rich seam of networked content... imagine the potential that will be realised for all this through Web 2.0... user generated content via RSS feeds (e.g. create course activities, SAQs, resources around reliable RSS feeds thereby keeping content 'up to date')... imagine the phenomenal learning machine that is the human mind being released from the constraints of conventional education and continuing to grow and learn at the same rate as babies/toddlers right throughout childhood and adulthood (if we taught babies to walk and talk in the same way we teach kids at school, they'd probably never learn)... imagine the potential to get a critical mass of people playing with technological tools or types of content sufficient to see the emergence of collective utilities, ideas, features which we hadn't conceived of (the Martin Weller model)... imagine the potential to break free of the short term government driven 'we will fix education this year' interference in the conventional education system... imagine the capacity to break away from the 'expert delivered content' model of education with the teacher at the front of the class as the arbiter and holder of all knowledge, selectively released to the supposed empty vessels that are her pupils... imagine the capacity for people to actually learn at their own pace not at some arbitrary pace dictated by some arbitrary system... imagine the capacity for the teachers to learn from the kids...

Sorry I've got a bit carried away there but it is a theme I could bore for my native Ireland on ("Clearly!" responds the reader). I even have an educational wish list in the final chapter of my book and this kind of initiative, CC Learn, if it were to reach enough people with enough resources underpinning it, could get right to the heart of my wish list. I say in the book:

"There are enormous problems with basic access to educational materials
all over the world, even in affluent societies like the UK or the US. We
now have the technical capacity to make all recorded human knowledge
and culture available in an accessible form at an affordable cost. So why
don’t we do it?"

But it is not just about making it available. It is about making the capacity to build on it available by tapping into the infinite potential of people in touch with people to learn from what has gone before. I'll curb my enthusiasm at that point but the CC Learn director role definitely sounds like one for a James Boyle, a Jamie Love, a John Naughton or a Larry Lessig. Having said that, I have a number of other friends and colleagues who have a really deep understanding of this stuff and would do an outstanding job in such a role, such as Tony Nixon or Martin Weller. This is a project worth keeping an eye on - the potential here to make a real difference to the world is limitless.

Google and the rocks in the web's safe harbours

James Boyle via the FT: Google and the rocks in the web's safe harbours. He's exploring the Microsoft accusations against Google and suggests that when thinking about IP and new technologies we need a deeper level of analysis and public debate than 'stop thief' v 'that would make Google illegal'.

"When used in policy debate, the words "Microsoft" and "Google" operate to make people stupid. Half the population seems to assume Google's position will exemplify the public interest, while Microsoft is an evil empire bent on total control of our minds. (The satirical paper, The Onion, explores this hilariously in an article where a Google-planned genocide is said merely to raise "some potential privacy concerns".) This benign image may explain the muted criticism of Google's intellectual property missteps - the restrictive deals Google has struck with university libraries, for example, which prevent large-scale access by search engines or digital library projects even where public domain works are involved.

In many cases, Google's self-interest has aligned with the public interest. "That would make Google illegal," is the most effective argument against expansive property claims. What about YouTube? On a commonsense level, Viacom's arguments will persuade many. It is hard to portray Google as a helpless start-up. But if we end up narrowing defences to reach YouTube's deep pockets, we might make the next Google less likely to appear. Safe harbours will acquire rocks and shoals. Conclusion? In intellectual property, the cry "Stop! Thief!" is more complex than it seems. Ask Microsoft's lawyers."

Recommended.