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September 6, 2015

Lessig: Winning by losing

As of this morning, Lawrence Lessig is $9,000 short of his million dollar Kickstarter goal of funding his presidential bid. It look very much like Larry will be running for president.

It is a weird bid with virtually no chance of winning. Which makes it easier to support it.

Ethan Zuckerman’s post is what you should be reading about this. You should stop reading this post and go to his now.

Still here? Ok, that’s a mistake, but it’s up to you.

Ethan and I agree about Larry’s brilliance, his dedication, and his good heart. I’ve know Larry for about fifteen years, and I trust him twice as much as I distrust every other politician in the race. I completely agree with him that we’re never going to get to where we need to be so long as money buys elections and thus buys politicians. I think Larry would be a better president than almost all the people running. I love the cleverness of the electoral hack that Larry’s come up with.

But here’s my concern.

I agree with Ethan that Larry has no real chance of winning. If so, then his campaign is a “winning by losing” tactic: if it demonstrates that there is wide support for real campaign finance reform, then we’ve all won. Big Time, as one esteemed politician once said.

We will have won if Larry garners enough support in the early part of the campaign to force the issue onto the agenda. Thinking about him at the debates bringing the conversation back to the funding issue makes me happy.

But, there is one slightly longer-term danger that worries me. When Democrats step into the voting booth on primary day, some percentage of people who think campaign finance reform is important are going to cast their vote for Bernie, Hillary, or Joe because they don’t want to “waste” their vote on a symbolic gesture. But there are virtually no people who think finance reform is important but not all-important who are going to vote for Larry instead of for a “real” candidate. The result could very well be, I’m afraid, that Lessig’s totals in the primaries will under-represent support for campaign finance reform. His candidacy may therefore make finance reform look more marginal than it actually is.

So, there’s a possible lose-by-losing outcome here. That’s my fear.

But I find this very hard to think about without knowing who his VP candidate will be, for this is not really a referendum. In a referendum, your vote on an issue is independent of your vote for a candidate. In this case, though, you’re also voting for a president-in-waiting who will take over once Larry resigns. If you favor campaign reform but don’t like his VP, will you still vote for Larry? And vice versa? The results are going to be hard to parse, which is not true of actual referenda.

If the primary results undercount the support for the issue, my hope is that that actual vote count will be far less influential than Larry’s presence in the campaign before the voting begins. Assuming that he can’t actually win, I and all (?) of his supporters hope that Larry does well enough on the campaign trail that his campaign gets coopted by one of the more electorally plausible candidates, so that campaign finance reform becomes a major issue in the campaign.

For that to happen, we need to support his campaign now. Which I do. But, weirdly, I don’t support only his campaign.


This addendum will self-destruct, possibly very soon.

My family talked briefly this morning about who Lessig’s VP might be. One of us thinks it’ll be a conservative. I have an odd hunch that I recognize makes no actual sense: Al Gore for VP?

But another had the interesting idea that Lessig will promise it will be whoever comes in second in the Democratic primaries. That way, if you prefer, say, Sanders to Lessig as an actual president, but you support campaign finance reform, you could get both by voting for Lessig. Of course, Sanders wouldn’t want his vote split. I find this all difficult to think about…

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August 24, 2013

Unknowing v. Lessig

Not since the NFL sent a takedown notification to Wendy Seltzer because she posted the NFL’s copyright notice has a takedown notice been so unknowing. Wendy is a law professor and the head of the Chilling Effects archive of takedown notifications. The new Notification of Unknowingness went to Lawrence Lessig for using a short clip to make a point in a video of a talk about the overreach of copyright:

A co-founder of the nonprofit Creative Commons and author of numerous books on law and technology, Lessig has played a pivotal role in shaping the debate about copyright in the digital age. In June 2010, Lessig delivered a lecture titled “Open” at a Creative Commons conference in South Korea that included several short clips of amateur dance videos set to the song “Lisztomania” by the French band Phoenix. The lecture, which was later uploaded to YouTube, used the clips to highlight emerging styles of cultural communication on the Internet. [source: eff]

When YouTube forwarded the DMCA takedown notice to him, Lessig did what so few people do: he counter-notified that his use of the clip was an instance of Fair Use. [More details here.] Fair Use is an exemption to copyright that lets reasonable extracts be used in cases just like Larry’s video. [Better explanation here.] The copyright holder then said they were going to sue Lessig for infringement. Lessig took down the clip and is now taking the issue to court with the help of the Electronic Frontier Foundation. (Did you remember to donate to the EFF?) Their aim is to get the judge to issue a declarative judgment that the the clip is covered by Fair Use, and to get damages as specified in DMCA clause 512f:

(f) Misrepresentations. Any person who knowingly materially misrepresents under this section
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,

shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

Since what exactly constitutes Fair Use is determined by courts, a declarative judgment would help clarify that uses like Larry’s are definitely ok, and the awarding of damages would help discourage organizations from issuing automated takedowns that give no heed to the circumstances in which the content is being used. (But I am not a lawyer, so do not believe me.)

The final irony: The name of the copyright holder is Liberation Music.

Go, Larry! Go EFF! And thank you!

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June 3, 2011

Happy birthday, Larry!

One of the heroes of the Internet turns 50, and the people who love him (and there are a lot of us) thank him on this perfectly appropriate video:

Larry Lessig 50th Birthday Lip Sync Tribute from Daniel Jones on Vimeo.

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November 11, 2010

Lessig backs Tea Party

Now for the de-sensationalizing of that headline.

Lawrence Lessig is indeed finding common cause with the Tea Party, but only with one part of its agenda: fighting earmarks — a position that has put the Tea Party at odds with many members of the Republican Congressional delegation.

If any of the Tea Partiers want to back the end of gerrymandering, I’d be happy to tip my liberal hat at them.

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October 13, 2009

Larry Lessig: Beyond Transparency, and Net Triumphalism

Plenty is being written already trying to parse, understand, and come to terms with Larry Lessig’s article “Against Transparency” in the New Republic. Ethan Zuckerman does his usual outstanding job in clarifying ideas sympathetically. Transparency advocate Carl Malamud responds to Lessig. I presented my own “walkthrough” of the article. The New Republic has run Tim Wu‘s response, which agrees with Lessig in important ways. The New Republic has also run four other responses, including an excellent response from Ellen Miller and Michael Klein, founders of the Sunlight Foundation, the leading advocate for transparency. (My response is included in that set of four.) Aaron Swartz prefigured Larry’s argument in a piece he posted in April: “Transparency is bunk.” Plenty to chew on.

I want to briefly expand on the article’s import.

At the end, Larry expands his own argument to cover “Internet triumphalism.” Over the past couple of years, we’ve been seeing Net triumphalism waning, at least in the circles I travel in. Triumphalism is the notion that the war has been won. It’s over. Net triumphalism thinks that the new tech is in place, cannot be removed, and will change everything. It thus includes Net techno-determinism, i.e., the idea that the mere presence of the Net has predictable, determinate, and inevitable effects. Triumphalism adds: Yay!

Net triumphalism seemed more plausible back in the days when the demographics of the participants were pretty homogeneous, masking the role culture played in the homogeneous effects the Net was having. As regimes have censored the Net in ways the Net has not routed around, as Albert-Laszlo Barabasi and then Clay Shirky showed us that the Net tends towards the old patterns of unequal influence, as the mere networked presence of Howard Dean supporters failed to end GW Bush’s reign of error, naive Internet Triumphalism has become unsupportable. As Joe Trippi said, we need mouse pads and shoe leather. As Aaron Swartz says, we need narrative journalism as well as the Web. As Larry Lessig says, we need political reform as well as the Web. Indeed, as Aaron and Larry point out, the sunlight of transparency casts shadows as well.

I think “Against Transparency” misidentifies the source of the threat and undervalues the benefits of transparency-as-the-default, even as I agree with Larry’s cautions and his policy agenda. I nevertheless think it is one more marker in incremental extirpation of Internet triumphalism. Some of the pain reading his article causes old-time Net enthusiasts like me comes from that. It’s the right pain to feel, even if we disagree with the particularities of Larry’s article.

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October 12, 2009

Lessig’s “Against Transparency”: A walkthrough

I’ve been in a small round of email among friends, arguing over exactly what Larry Lessig means in his article in The New Republic titled “Against Transparency.” It is a challenging article for those of us who support government transparency, and Larry is obviously both influential and brilliant. So, I wanted to be sure that I was following his argument, since it is somewhat discursive.

Here’s what I think is a guide to the flow of the article, with links to the eleven Web pages across which the article is spread. (I’ve made judgment calls about where to divide topics that span a page.) The following is all my gloss and paraphrasing; let me know if you think I’ve gotten it wrong. Note that I intend this only as a guide to reading the article, not as a substitute. I’ve purposefully filed off the nuances, grace notes, and subtleties that make this a Larry Lessig article. (Note also that the italicized bits are not me interjecting; they’re the article’s own objections and qualifiers.)

Section I: Transparency is not necessarily good

[link] Sometimes, transparency that seems good is bad. (“Punch-Clock Campaign” example.)

Especially bad is “naked transparency,” which wants massive amounts of government data made available over the Internet. Naked transparency will “simply push any faith in our political system over the cliff.”

Qualifier: Most transparency projects are not bad.

[link] Transparency projects that track the flow of money and influence are particularly bad.

[link] A short history of transparency. (Brandeis)

To be helpful, information has to be incorporated into “complex chains of comprehension.”

Is that what’s happening with what naked transparency reveals? The supporters of transparency haven’t asked that question.

[link] Section II: Transparency leads to untruth

Mere correlations between politicians, donors, and votes does not tell us if the politician is corrupt.

Objection: But, revealing those correlations does no harm.

[link] Yes it does! (Hillary Clinton example.) Once the correlation gets in our head, we can’t get rid of it.

Objection: More information will chase out the bad info.

[link] No it won’t! Our attention spans are shot. You can see this everywhere. (Surveillance camera example.)

[link] Section III: How to respond

Can we get the good of transparency without the bad? No. (JAMA example.)

[link] The transparency argument is following a familiar pattern. Similarly, tech has enabled a “free content movement” that has disrupted the newspaper and music industries.

Let’s not follow that pattern in how we respond. We can’t fight the Net’s lessening of control over info.

[link] We need solutions that accept the Net’s effect. (William Fisher and Neil Netanel examples.)

[link] The solution is obvious. Transparency is inevitably going to raise false suspicions. We are prey to those suspicions because we already believe that politics is corrupt. Therefore, we need to eliminate political corruption.

To eliminate political corruption, we should enact the Fair Elections Now Act.

Caveat: The name of the act is misleading. It’s not about fairness.

Without this, we are doomed.

The transparency movement should support campaign finance reform, and should constantly remind us that transparency is not “just a big simple blessing.”

[link] Likewise for the rest of the Internet triumphalism.

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February 20, 2008

Lessig for Congress!

“… can you imagine, three people walking in
singin a bar of Alice’s Restaurant and walking out. They may think it’s an
organization. And can you, can you imagine fifty people a day, I said
fifty people a day walking in singin a bar of Alice’s Restaurant and
walking out. And friends they may think it’s a movement.
— Arlo Guthrie


Now’s your chance to jump into the Draft Larry Lessig movement at the very beginning. The group is trying to persuade Prof. Lessig to run for Congress in the 12th district, for the seat left sadly empty by the late Tom Lantos. (If Lessig doesn’t run, your contribution goes to Creative Commons.)

If there were a way to draft Lessig as chair of the FCC or as Supreme Court justice, I’d join that, too. [Tags: ]

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February 10, 2008

Fair use v. Falling in line with Harry Potter

There’s a terrific article in the NYT about Lessig’s Fair Use Project’s involvement in defending a small publisher who brought out a Harry Potter encyclopedia. When the publisher went from Web to print, and from free to for-money, the Potter folks sued, saying it’s unfair. The author, Joe Nocera, says:

For, as Mr. Lessig points out, anybody who owns a computer can now create content that is based on someone else’s creation. Indeed, we do all the time, by posting content on Facebook, on YouTube, everywhere on the Internet. If the creation of that content is deemed to be a violation of copyright, “then we have a whole generation of criminals,” said Mr. Lessig — which is terribly corrosive to society. But if it is fair use, as it ought to be, then it becomes something quite healthy — new forms of free expression and creativity.

He concludes on quite an optimistic note. [Tags: ]

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