A few new firsts at the Berkman Center

Charlie Nesson and his daughter Rebecca Nesson are hosting the Tuesday lunchtime session at the Berkman Center today.

– One first is that this is the first video webcast lunch event. We’ve regularly webcast these lunches audio-only. This week, with the help of Indigo Tabor, we are offering a live feed with video as well as audio. (The real-time webcast is 12:00 – 1:30 p.m. EDT today, Tuesday, Sept. 12, 2006.) So, too, is it being offered in Second Life, where 24 people are tuning in at the moment from Berkman Island, we’re told.

– The other first (actually, I’m certain there are more than two, since Becca and Charlie are involved) is that the class that they are talking about, Cyberone: Law in the Court of Public Opinion, is being taught IN Second Life, a first for Harvard Law School and Harvard Extension School, anyway. If you haven’t seen the promo video for it yet, it’s a must.

It remains to be seen if these firsts will stick. It remains to be seen if these firsts will lead to other good things, as the establishment of Creative Commons by Prof. Lessig or the first podcast series hosted here by a combination of Dave Winer, Chris Lydon, and Bob Doyle. But it’s fun to be sure. Charlie and Becca keep the Berkman Center young and just a bit hip, and the likes of Rodica, Dean, Gene, and John Lester from Linden Labs keep giving things like these experiments life.

(John Bracken called this first first, way before me, and added more about a Berkeley example.)

Following up on the RSS/Copyright debate

In the past few weeks, I’ve gotten several fresh calls, four in fact (some out of the blue, some from people I know well) about RSS, aggregation, and copyright issues. I think the matter continues to have traction and importance. Two follow-ups:

– I never managed, somehow, to see a very fine reply from Nathan Yergler to a post of my own a few months ago. I had proposed a series of 5 licenses specific to syndicated online sources. (I understand that Nathan works for CC in a technical job but was not writing as a CC employee.) His sense is that there is a need for more explicit licensing of citizen-generated content, but that CC licenses (and other things, like full copyright and the public domain) already cover the five variants that I had in mind. It’s a nice argument. I have to think about whether I agree in full — there are reasons why CC Attribution 2.5 may not get the job done in full for all users, say — but if he’s right, then we’d need no new licenses, but just a campaign to get people to know about the options and to use them in ways that reflect their desires related to aggregation and re-use of their content. (Apologies, Nathan, that I’m just getting to reply now, but I managed to miss it the first time; it was a strong argument.)

– Ethan Zuckerman had a terrific post, and engendered more discussion, on just this topic. As Ethan writes, “I want to see Creative Commons succeed. I share Larry Lessig’s concern that artists of all sorts need material to enter the public domain so that we can comment, remix, repurpose and create. I release (with very rare exceptions) everything I do under CC in the vague hope that someone else will find it useful. But widespread abuse of content published under CC licenses will make creators – me included – reluctant to release content under them.”

These posts prompted me to reflect on another matter much on my mind, which is the difference between holding intellectual property rights in the first place and in enforcing them. Admittedly: I am not a fan of a strong view of copyright. Nor, for that matter, do I think may forms of patents make much sense at all, at least in anything like the form that they currently take. That is not to say, though, that I think it’s immoral or otherwise bad to hold IP rights. I think that authors or recording artists or those who make movies should be compensated; I’m not a fan of piracy. The fact that things are right now out of whack in the IP realm (see Lessig’s permission culture argument, among many other good articulations of the problem, and any number of people who have pointed out silly patents getting issued) and the fact that pre-digital IP laws are looking a bit long in the tooth in a world packed with digital natives do not change the fact that I want there to be an incentive to create and for fairness to reign in the world (i.e., for artists and inventors to be able to make a living).

What I’m coming to think is that, absent systemic reform, holding IP rights, some of which, like copyright, attach automatically, is not the primary issue. The issue is much more about what rights we choose to enforce against others and how we do it. The issue is also whether we have a system of accountability where, when we do give away some rights that otherwise would attach, we can hold others to the rights we’ve chosen to retain. This is a sticky problem, especially when choices about enforcement could, recursively I suppose, affect those rights themselves. (An issue for another day, but: this is true also of the tiny start-up that holds a software patent for defensive purposes, to create freedom of action against incumbents, and perhaps who licenses it to other firms for similar purposes. The issue is whether those rights are exercised in an appropriate manner.)

I think a key next step in the RSS and copyright discussion may not be new licenses (if Mr. Yergler is right; or perhaps tweaked ones, if that would help; or perhaps repackaged ones, so ordinary people can figure it out), but rather 1) a clearer common understanding of what people mean when they in fact license their works in this fashion and 2) appropriate systems to enforce those rights when they’re being flagrantly violated. Of course, the copyright system works just fine on this second score (perhaps too well, sometimes!), but I suppose that those of us who are wildly supportive of CC as an essential add-on to the copyright regime may have to be willing to step up and file cease-and-desist letters where necessary (polite ones, perhaps!), even as distateful as that may seem. A great deal, it seems to me, hangs in the balance of getting it right, if the trends in creativity online, syndication, search, and aggregation continue on their current trajectory.

A free, legal guide for podcasters

One of the questions we get all the time is: “how do I know what’s legal and illegal when I’m podcasting?” It’s one of those questions that can make a lawyer cringe, because you either 1) spend the rest of the cocktail party trying to give a decent answer or 2) you have to say it’s too complicated and the person should hire a lawyer.

So, a better answer: check out the hot-off-the-press Podcasting Legal Guide — not legal advice, exactly, but a wonderful text with answers to most questions, prepared through a joint initiative of Creative Commons (especially their terrific GC, Mia Garlick) and the law clinics at the Stanford Center for Internet & Society and the Berkman Center for Internet & Society at Harvard Law School.