Thanks to his Internet-centered campaigning, presidential contender Howard Dean appears to be far more wired into the wired electorate than his Democratic rivals or George W. Bush. Dean’s innovative use of the Web has gotten plaudits from the press, and his courting of the wired crowd seems to be paying off—10,000 people showed up for an August 24 rally in cybercity Seattle. But if Dean is to keep the goodwill of blogocrats, he must find the message to match their medium.
It is perhaps with this obligation in mind that the former Vermont governor spent a week in mid July as a guest blogger on the online journal of Stanford law professor Lawrence Lessig. A cyberspace hero, Lessig is the author of Code, and Other Laws of Cyberspace and The Future of Ideas, both of which passionately advocate the value of preserving the Internet for the public domain and warn of the dangers of giving too much power over innovation to corporations through new copyright extensions and restriction of competition.
The emerging online intellectual-property movement is broad and potentially baffling to those not fluent in both legal and technological jargon. It covers controversies as diverse as Napster, FCC rules on media consolidation, the Microsoft monopoly case, and the use of open-source software. In recent years, techies’ ire has coalesced around two pieces of largely under-publicized legislation: the Digital Millennium Copyright Act (DMCA) and the Sonny Bono Copyright Term Extension Act, both passed in 1998.
The Sonny Bono Act, notably backed by Disney, extended the term of copyright for the 11th time in 40 years, to the life of the author plus 70 years. Online entrepreneur Eric Eldred lost a challenge to the act in the U.S. Supreme Court in early 2003; he unsuccessfully argued that copyrights were no longer meaningfully limited in time because of these repeated extensions.
The DMCA attempts to strengthen existing copyright protections for the new online media. Its most detested provision is referred to as “anticircumvention.” Roughly, any software tool whose main purpose is to break security encryption on a piece of copyrighted intellectual content, whether a DVD, a music file, or a software program, is now illegal. This new protection for copyrighted material carries no accompanying provision for fair use; in practice, large media and software companies, including eight major movie studios, have had programmers prosecuted and jailed for writing decryption devices even when the programmers’ code has had a legitimate academic purpose. And the law certainly doesn’t make it any easier to trade movies or music in peer-to-peer networks like Napster.
For Lessig and his camp, including members of free-culture groups like the Electronic Frontier Foundation, the new copyright protections are not annoying technicalities but a social counter-revolution in process, turning the “creative commons” that was the early Internet into an environment even more controlled by corporations than “real space.”
“Those threatened by this technology of freedom have learned how to turn this technology off. The switch is now being thrown. We are doing nothing about it,” Lessig concluded in The Future of Ideas.
On the surface, at least, Dean’s campaign is operating very much in sync with the idea of the creative commons. His campaign manager, Joe Trippi, a software industry insider and a self-described avid reader of blogs, extols the virtues of Dean’s “bottom-up” strategy over “broadcast politics.”
His rivals John Kerry and John Edwards have taken note; both recently launched campaign blogs. But Dean’s people have moved far beyond that. Using its official online campaign journal, Blogforamerica.com, the commercial website Meetup.com, and scores of unofficial sites, the Dean campaign has coordinated meetings and rallies, raising considerable funds from thousands of small donors in targeted message-sending bursts. (The campaign says it raised $500,000 in a few days in July in response to its publicizing a Dick Cheney $2,000-a-plate fundraiser.) Most appealing is the opportunity for young, wired citizens familiar with Web journals to give online feedback and thereby get excited about democracy. Lessig has referred to the Dean campaign’s strategy as “open-source,” a term describing free and collaboratively created software, like the original Linux.
But how committed is Dean to the principles behind the open-source idea? When the unofficial, but large, Dean Nation blog submitted a list of readers’ 10 most popular questions to the Dean campaign in April, the DMCA made it, along with “9-11 Investigation” and “Cutting Gov’t Spending.” Yet in the five short entries that Dean posted on Lessig’s blog, he managed to avoid the DMCA and the Sonny Bono Act, though hundreds of posters both during the week and later mentioned the issue or asked him to state a position.
“What is your position on the threat to the public domain? And what policies do you intend to support to address that threat?” asked Dean Nation blogger Aziz H. Poonawalla. A poster to Lessig’s blog named J.B. Nicholson-Owens complained on July 21, “Dean had the opportunity to research something related to copyright issues before coming here. I see little (if any) evidence he did that. To me this comes off as profoundly disrespectful of the audience. During the (mostly one-way) discussion, he had time to compose a response that would give us some inkling of what he was thinking on any copyright-related issue (which is the main topic on this blog).”
Reached by the Voice, Dorie Clark, Dean’s New Hampshire communications director, said, “Governor Dean recognizes the importance of these issues and his policy team is looking into them, but we haven’t reached a policy yet.”
Lessig himself seems disinclined to press Dean on the matter. “I invited Dean in particular,” Lessig posted after Dean’s visit, “because so much of the success of his campaign has come from those who spend time on the Internet, and I suggested that the mix who spent time at my blog had a valuable set of insights that might be useful to understanding the issues that rage on these pages. But as I’ve said before, these issues are not the central issues of a presidential campaign (yet, anyway). And necessarily, any attention a presidential campaign gives to these issues will be for the purpose of learning. No one launches a campaign for President in 2004 with the aim to ‘free culture’ or limit the excesses of creative regulation.”
Though Stanford induced Lessig to move his site to a personal server after the Dean postings because of Federal Election Commission regulations aimed at keeping school resources out of political campaigns, the guest spot does not necessarily imply an endorsement. In fact, Lessig has personally contributed only to the Edwards campaign.
Many bloggers who do support Dean believe they understand why it may be in his interest not to come out just now in favor of copyright reform, as candidate Dennis Kucinich, for example, has (also guesting on Lessig’s blog). “I was encouraged by Dean’s appearance on Lessig’s blog, and his stated desire to learn about IP [intellectual property] issues and make an informed decision,” Brian Flemming, editor of the political and culture blog Slumdance.com, told the Voice. “I’d love it if he took a stand against the DMCA, the Sonny Bono Act, etc., but I do understand that would be throwing caution to the wind politically, given the power of the media companies. Al Gore had the media against him, and he nearly lost. I’m not anticipating a radical stand from a candidate already pegged as unelectable by some.”
The Recording Industry Association of America and the Motion Picture Association of America were both major supporters of the DMCA. Dean’s list of individual contributors, on the other hand, already includes dozens of Hollywood names, including Warner Bros. president and COO Alan Horn, Disney producer Jeffrey Abrams, Mel Brooks, Norman Lear, and executives at Sony, Universal, 20th Century Fox, HBO, and Showtime. If Dean shapes his messages to please big media, that could be a big blow to the creative commons.