What makes you think Lessig doesn't think other peoples' copyrights should be respect?

Prof Lessig advocates IP infringing activities and downplays critical investments made by IP holders. But I will grant him this: he is clever, he dropped his early lietmotif that FOSS is *more innovative* and adopted *FOSS preserves culture while IP deprives it.* He thereby casted aside an untenable position and yet continued his crusade against artists, entrepeneurs and successful companies. What troubles me about this is Prof Lessig`s longstanding war on those private entities that bring us a culture and industry the rest of the world envies. As a consumer I want him to leave my *producers* alone.

"Prof Lessig advocates IP infringing activities."

Like what?

"His crusade against artists, entrepeneurs and successful companies."

Which crusade is that?

Moving aside from Lessig for a moment, let's examine the fair use claim based on the four factors:

"1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;"

This is clearly a for profit magazine that makes its money from advertising and subscriptions. Strike against fair use.

"2. the nature of the copyrighted work;"

The picture was previously released online, and the AutoWeek publisher apparently (as far as the facts as written go) lied about where he found the picture, so he clearly had to know who took it and the license thereof.

"3. amount and substantiality of the portion used in relation to the copyrighted work as a whole;"

They used the entire picture, including the "heart of the work."

"4. the effect of the use upon the potential market for or value of the copyrighted work."

Photographers often make their living entirely out of selling their photos, whether by putting themselves into image collections (such as Corbis and Getty), working directly for a publisher, or occasionally selling photos based on recognition.

In this instance, there is a known and respected marketplace for his work. A similar work could have been obtained from elsewhere, but the magazine chose to use his.

Now to the issue (or, as it were, non-issue) of the trademark and whatnot in the original photo. As any photographer will know, anything displayed outright in public, such as signage, artwork, or people, can be photographed and that photo sold for whatever price the photographer wants (aside from very rare exceptions to this, which I personally find inconsistent most of the time, but let's move on from that). Otherwise, photographing something like Times Square for a postcard (or whatever other reason) would be a nightmare. Photographers have very broad lattitude in this regard.

The restrictions on this usually involve associating brands or people with something else, such as if you took a photo of a starlet in a bikini and used it in an advertising campaign without that person's permission, then that would be a violation of the use of the photo.

Therefore, I think it's pretty obvious that this doesn't touch fair use, and the photographer deserves whatever he wants to charge for the infringement.

Pardon, I reread what I wrote, and would like to revise the first fair use section to this:

"This is clearly a for profit magazine that makes its money from advertising and subscriptions, although it is using the photo for editorial/newsreporting purposes. A positive for fair use, but barely. On the other hand, the later factors more than overshadow this, I feel."

Agreed that it probably is not an instance of fair use.

Tim, first Professor Lessig accused "monopolies" and IP holding entities of stifling innovation, and now depriving society of culture (I know you've read the Future of Ideas and Free Culture).

Is Professor Lessig important for communicating societal concerns in technology policy? Yes, I will agree with that. Is Professor Lessig an expert in technology policy? No, not concerning innovation, history of innovation, patents, copyright, DRM, etc.

I won't even touch on the "loss of culture" argument, but I will say it assumes several things about the public domain and the commons that we can discuss later:)

You're changing the subject. You said that Lessig "advocates IP infringing activities" and is on a "crusade against artists, entrepeneurs and successful companies." What's your evidence?

See excerpts below from an interview w/ Professor Lessig on Oreilly. http://www.oreillynet.com/pub/a/policy/2005/02/24/lessig.html.

Basically, Professor Lessig is saying that he's not for people using P2P technologies to infringe copyrights, but then implying that unless Grokster not be held secondarily liable that P2P technology will come to an end. Hence, to preserve the innovative capabilities of P2P, we have to accept some copyright infringement.

Like EFF, Professor Lessig sees any costs of legal compliance, or legitimization as stifling of innovation. He may not be saying "infringe IP" but Professor Lessig is definitely implying "turn a blind eye to IP infringement."

As for "crusade against artists, entrepeneurs and successful companies" I thought that would be apparent. Don't you think that faulting private entities for depriving citizens of "culture" is putting heavy blame and responsibility on them. Don't call it a crusade, fine. But Professor Lessig is targeting IP holders in his effort to save culture- and IP holders include artists, entrepeneurs and successful comapnies.

Lessig: "So the issue in Grokster is whether a company that makes a technology that people can use for peer-to-peer file sharing should be responsible for the illegal behavior that is committed using their technology. And the general principle that has guided American technology to date is that the maker of a technology that is capable of lots of legal uses is not responsible for the illegal uses--for example, guns.

And that principle has been reinforced by legislative actions, saying that the manufacturer won't be responsible for the criminal actions of people using their technology, but in the context of copyright, that commitment has been much weaker. And so the copyright cabal is using both legislative and judicial pressure to try to create liability for companies like Grokster, so that those companies are driven out of business, and the opportunity for peer-to-peer technology to become an integral part of the infrastructure of the internet gets weakened.

Now I don't personally support the idea of people using peer-to-peer technologies to commit acts that are considered illegal. So I'm not interested in peer-to-peer surviving for the purpose of enabling copyright infringement. But I am really eager that the technology be allowed to exist so that the many legal uses that it will encourage--including uses that will support the remix culture--will be able to take off."

Noel, in that quote he specifically says he's not in favor of people using peer-to-peer technology for infringement. I don't agree with his position on Grokster, but his position doesn't make him anti-copyright.

As for crusading against "successful companies," what he's crusading against is companies who lobby for excessive expansions of intellectual property rights (such as the CTEA and the DMCA). He's not against successful companies per se. That's like saying I'm against successful companies when I criticize ADM for taking too much corporate welfare. And where does he attack artists and entrepreneurs?

My main disagreement with Professor Lessig is that he sees the possible incursion of legal liability as threatening the whole future and potential of P2Ps and other technologies. Thats like saying: unless I have legal immunity, I'm not going to innovate at all. To balance the fate of an entire technology on this framework is a far stretch don't you think. Its simply a weak, if not farfetched, argument meant to allow copyright infringement under the justification of protecting innovation.

I agreed w/ Professor Lessig on the CTEA. I think that legislation should have included some provisions limiting future term extension acts.

I point to a speech at an open source business conference where Professor Lessig picked on Microsoft, not for its support of either the CTEA or DMCA, but because its successful, and thereby has the resources to "potentially" misuse its market power: http://blogs.zdnet.com/BTL/?p=1247. Nevermind that Microsoft is the one getting sued for patent infringement, Professor Lessig finds it too easy going after the big successful player, whereas much of the harm in today's digital economy comes form smaller, unsuccssful players grabbing for last ditch efforts to save themselves (patent trolls, SCO).

I thought Professor Lessig opposed DRM, which, if you're a small guy with little capital, goes a long way in ensuring a range of possible business models and getting your content to consumers. However, commendfully, Professor Lessig broke ranks with both EFF and the FSF in supporting some recent DRM work: http://www.theregister.co.uk/2006/03/24/lessig_blesses_drm/. So, perhaps Professor Lessig is supportive of artists and entrepreneurs afterall:)

So you agree with me that Lessig doesn't actually support copyright infringement, and that he's not anti-entrepreneur or anti-artist?

And yeah, he's against big companies that abuse our broken software patent system. And he's got some views on antitrust law that could be characterized as anti-corporate. But I thought the subject of this post was copyright, not patents or antitrust.

Again, Professor Lessig argued, as I cite above, that he doesn't support copyright infringement per se, but to save the future of innovation for the likes of P2Ps, copyright infringement will need to be overlooked.

Does this argument sound funny to anybody? The framework of the argument is inherently lenient on infringement; and for what?

Where does Professor Lessig's argument come from. Perhaps from a misconception of innovation, or low estimate of the technology to survive legal challenges. Maybe he didn't forsee the acceptance of P2P technologies by the Studios, or future legitimate business models arising with support of the Studios and other IP holders.

Professor Lessig probably thought more creativity would surface if the rogue P2Ps were allowed to play without fear of the cops. But to frame innovation as collateral unless legal liability is set aside, sounds like tacit support for infringement to me.

So would you say that the Supreme Court "advocated infringing activities" when it allowed Sony to sell the VCR in 1984?

No, the Supreme Court considered what is and is not infringing activity, and balanced that against non-infringing uses of the VCR.

Professor Lessig on the other hand simply wanted to discount infringement entirely to allow P2Ps to develop w/o obstacle.