Go to access2research.org for more information about this campaign, and a link to the petition page.  The organizers are hoping to get 25,000 signatures, and to get to that level relatively quickly.  Anyone over age 13 can sign.  Please consider signing.  I signed.  #openaccess.

Here is the text of the petition.  It’s short, because of the limits imposed by the White House online petition process:

WE PETITION THE OBAMA ADMINISTRATION TO:

 Require free, timely access over the Internet to journal articles arising from taxpayer-funded research.

 We believe in the power of the Internet to foster innovation, research, and education.  Requiring the published results of taxpayer-funded research to be posted on the Internet in human and machine readable form would provide access to patients and caregivers, students and their teachers, researchers, entrepreneurs, and other taxpayers who paid for the research. Expanding access would speed the research process and increase the return on our investment in scientific research.

The highly successful Public Access Policy of the National Institutes of Health proves that this can be done without disrupting the research process, and we urge President Obama to act now to implement open access policies for all federal agencies that fund scientific research.

Great art, or, let’s just say, more modestly, original art is never created in the safe middle ground, but always at the edge. Originality is dangerous. It challenges, questions, overturns assumptions, unsettles moral codes, disrespects sacred cows or other such entities. It can be shocking, or ugly, or, to use the catch-all term so beloved of the tabloid press, controversial. And if we believe in liberty, if we want the air we breathe to remain plentiful and breathable, this is the art whose right to exist we must not only defend, but celebrate. Art is not entertainment. At its very best, it’s a revolution.

The whole piece is thought-provoking.  Rushie likely isn’t talking about copyright, but I can’t help but read his rant against censorship in light of copyright’s omnipresent threat to those who would borrow in creating the new, and in light of copyright’s trivializing the idea of real originality. Rushdie again:

Consider, if you will, the air. Here it is, all around us, plentiful, freely available, and broadly breathable. And yes, I know, it’s not perfectly clean or perfectly pure, but here it nevertheless is, plenty of it, enough for all of us and lots to spare. When breathable air is available so freely and in such quantity, it would be redundant to demand that breathable air be freely provided to all, in sufficient quantity for the needs of all. What you have, you can easily take for granted, and ignore. There’s just no need to make a fuss about it. You breathe the freely available, broadly breathable air, and you get on with your day. The air is not a subject. It is not something that most of us want to discuss.

Imagine, now, that somewhere up there you might find a giant set of faucets, and that the air we breathe flows from those faucets, hot air and cold air and tepid air from some celestial mixer-unit. And imagine that an entity up there, not known to us, or perhaps even known to us, begins on a certain day to turn off the faucets one by one, so that slowly we begin to notice that the available air, still breathable, still free, is thinning. The time comes when we find that we are breathing more heavily, perhaps even gasping for air. By this time, many of us would have begun to protest, to condemn the reduction in the air supply, and to argue loudly for the right to freely available, broadly breathable air. Scarcity, you could say, creates demand.

I am tempted, of course, to repost the whole thing. But I know The New Yorker’s lawyers, and I know how they feel about copyright.

I’d bet all the money in my pocket that Sweat has not been paying attention to the media coverage of the long-term professional and financial damage that can be done by going to law school…

Ironically, Andrew Sweat didn’t get into Ohio State’s Moritz College of Law. The schools he did get into are decent enough, but they’re not at the top of the heap. The Columbus Dispatch reports that Sweat got into law school at Pittsburgh, Duquesne, West Virginia, Florida and the University of Miami.

In other words:  Better to risk further concussions and permanent brain injury (and hope for the rookie minimum salary) than to play the odds at the law school where I teach, or at almost any other law school.  NFL football can’t wait; law school can.

• Benkler’s post
• Carr’s response (also posted as a comment to Benkler)

They disagree about the most basic terms of the wager (what are the right categories?  what are the right things?), so it’s no surprise that there is really no winner.

The debate — the substance, not the parties — reminded me of a scene in Cameron Crowe’s film Almost Famous.  Philip Seymour Hoffman, playing the music critic Lester Bangs, carries on:

“I’m telling you, you’re coming along at a very dangerous time for rock ’n’ roll. The war is over. They won. They will ruin rock ’n’ roll and strangle everything we love about it and then it just becomes an industry of cool. 99 percent of what passes for rock n roll, silence is more compelling.”

That flick was set in 1973.  Bangs = Carr?  Benkler = William Miller (the fictionalized Cameron Crowe, the film’s protagonist)?  Plus ça change ….

A certain bona fide identity having been confirmed, at that the driver first did what some people do when I say that I teach copyright law.  He metaphorically climbed into a protective stance, as if I were going to come after him for infringement.  I said no, it’s cool; I’m not going to bring anything down on him.   That let to a wide-ranging 30-minute conversation about sampling and local hip hop production.  My cab driver, it turned out, has a burgeoning career as a producer/engineer for local rappers, including his nephews and cousins, and he had a lot of thoughtful, musically educated questions about what’s OK and what’s not when it comes to being inspired by sources, to using sources, and to sampling sources.  He knows ASCAP and BMI and uses bandcamp.com, but he wanted to know how you go about making sample-based music and distributing it legally.

We didn’t come to any conclusions.  I left him with my business card and a note recommending Creative License, the recent book about sampling by Kembrew McLeod and Peter DiCola.  He left me with a new appreciation for just how deeply our screwed up music copyright system is affecting emerging artists.  (If you’re mixing something in your cousin’s basement, you’re not on a label, and you’re worried about clearing   rights to what you’ve borrowed or quoted, what do you do?)  He played some tracks from a mixtape (a burned CD, in truth) that he had produced for his cousin, a gospel rapper.  I emerged into the dark of my home newly frustrated by laws that are meant to enable creativity, and inspired by the extent to which the deep recesses of creative culture refuse to let those laws keep them down.

Here, collected in one place, are all of the posts.  (At least, I believe that this is everything!)

• Danielle Citron sets the stage.
• Danielle Citron welcomes the guests.
• Deven Desai on why now?
• Julie herself offers some questions.
• Hector Postigo on the self as cultural product.
• Ted Striphas on better stories and better culture.
• Danielle Citron on the architecture of human flourishing.
• Anita Allen and a critique.
• Frank Pasquale on method.
• Valerie Steeves on talking law.
• Paul Ohn minds the gap.
• Ian Kerr on play.
• Ann Bartow and a perspective from China.
• Brett Frischmann on everyday practice.

Fabulous symposium.  Congratulations to all involved.  [The post continues.]

I did not have time back in March to weigh on Julie’s book.  It is a magnificent accomplishment, in my view.  I am particularly attracted to her contribution of the idea of “semantic discontinuity” as a governing principle for information law and policy.  Back in 2000, I wrote up something along the same lines, though with none of Julie’s depth or elegance.  I’m reproducing a passage from that piece here largely because I, like Julie, am still figuring out what this instinct signifies:

[T]he technological architecture of copyright historically signified and/or consisted of one or more forms of discontinuity–distinctions, breaks, barriers, tensions, and even inconsistencies between and among physical and social constructions of the relevant environment. The author was distinct from the reader, from the original of the work, and from the law. The original was distinct from the copy. Each copy was distinct from the other. The separate rights provided by the law were distinct from each other, and the physical limitations of works meant that readers’ rights were distinct from those of the author. The meaning of copyright law today, what one might call copyright space, or the architecture of copyright, emerges from those discontinuities. Copyright law identifies and bridges (or, at times, consciously fails to bridge) relevant gaps among the limitations of the technology of creating copyrighted works, the goals of individuals and institutions that create, consume, and distribute such works, and whatever public policy choices society is held to have made. The dichotomy between unprotectable ideas and protectable expression isolates one such gap. The fair use doctrine highlights a second gap. Provisions for compulsory licensing of music compositions and cable television signals illustrate two occasions where copyright law bridges such gaps, rather than enforces them. Where the law places such bridges, and where it refuses to place them, sends important messages about the strengths and weaknesses of authors’ and readers’ interests in different contexts, about institutional politics, about the history of copyright law, the values of free expression, “progress,” and about a host of other things. Our understanding and appreciation of those things is made possible by the architecture described above. More directly, the architecture expresses them.

Over time, the notion of such a discontinuous architectural baseline has become deeply embedded in the presumptions that govern our thinking about information, and about copyright problems in particular. From time to time, judicial rhetoric has suggested that the essence of the copyright system is the ability of the rights holder to permit or proscribe each and every proposed use of the work. Scholars have observed that in judicial practice, however, holders have never possessed such absolute rights. Copyright law and policy is routinely and correctly characterized as reflecting a “balance” between the interests of creators and consumers. The contours of that balance have never been, and perhaps cannot be, described with precision. The very existence of incompatible physical formats for copyrighted works means that the nature of any discontinuities differs from format to format, and work to work. The law, accordingly, varies in seemingly odd ways.

Digits simplify. Digital technologies of information development and exploitation collapse these separate technological and legal architectures, as well as the gaps that characterize copyright’s architecture. Legal regulation of copyrighted works and technological regulation of information are increasingly indistinct. “Shrinkwrap” licenses for computer software become “clickwrap” licenses for software, websites, and possibly most any kind of information that is delivered in digital form. Information in the public domain (or eligible for reuse via fair use) is collected and delivered in digital format and made available so long as the recipient consents to restrictive terms or has appropriately configured the receiving device. Content-rating systems and filtering technologies shield viewers and customers from material that governments and/or content providers deem objectionable. One need no longer interpret copyright law to determine the limits of uses of copyrightable material. Digital technology imposes such limits automatically. Moreover, boundaries identifying “original” and “reproduction” (or “one iteration” and “two iterations”) are disappearing. … What … of technology that appears to permit operable combinations of executable computer code (copyrightable programs) to move from computing device to computing entirely electronically, leaving little or no electronic footprint on any device’s hardware? Do such transmissions involve potentially infinite illegal copying, or no copying at all? Unmoored to any physical substrate, such technology undermines divisions between tool (as an extension of the self) and copyrightable expression. A person who uses a pen or typewriter to create a novel can easily distinguish between un-copyrightable tool and copyrightable product. A person who uses a word processing program in a stand-alone computer may be able to distinguish tool (program) from product (data). Until the product is printed out, the two are essentially indistinguishable, and in any event the tool itself is copyrightable. As technology advances, data and program merge. Code is code. Where, in a digital world, does the “original” contribution of an author begin and end?

The ubiquity and commonality of this “bit-ness” highlights the [sameness] of digital information architecture …. Text, sounds, images, and even textures are technologically substitutable. If everything is just bits of data, the choice of words, melody, or graphic representation is merely the selection of a different mechanism for converting bits to human-recognizable form.

What has been a defining characteristic of copyright space, in sum, and what is disappearing in the transition to cyberspace, is the complexity of form and meaning represented in older legal and technological architectures. Copyright’s architecture is complex. Cyberspace is simple. … I suggest that in architectural terms, that disappearance represents a social harm.

Guardian story here.

Harvard memo here.

Principled stance or bargaining posture?  Some of both, I think.  This also strikes me as something akin to an “only Nixon can go to China” moment in an ongoing dialogue about open access.  Certainly it is “easy” in a sense for a world-leading private university with billions of dollars in its endowment to threaten to take its faculty scholarship and go home, proverbially speaking.  But a lot of other, less wealthy colleges and universities watch Harvard’s moves carefully.  Harvard knows that.  Maybe the better metaphor is E.F. Hutton.  Commercial publishers know that when Harvard talks, other institutions listen.

• Here is Brett’s framing post.
• Here is a post on education as infrastructure, from Deven Desai.
• Marvin Ammori on the breadth of the book.
• Adam Thierer on what the book does not address.
• Barbara Cherry on infrastructure and governance.
• Frank Pasquale on absent infrastructures.
• Andrew Odlyzko on property rights and infrastructure.
• Timothy Lee on infrastructure and the open Internet.
• Laura DeNardis on infrastructure and Internet governance.
• Michael Burstein on infrastructure and patent law.
• Brett on infrastructure as an analytic framework.
• Brett on models and empirics.
• Tim Wu on infrastructure as a way of thinking.

Congratulations to all participants for a stimulating conversation!

On behalf of sensible trademark lawyers everywhere, let me say that this is insane.  Please, let us hope that the Kings and the NHL step up and body-check the Chamber of Commerce on behalf of Bernier and good sense generally.  I’m no fan of violence in sports, so take that as a metaphor.

Meanwhile, I’m trying to imagine the kind of royalties that Randy Newman might have to pay if he were to release this music video today: