A blog about Law, Technology, and Music

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Location: Washington, DC, United States

I am a Professor of Law and the Director of the Program on Information Justice and Intellectual Property at the American University, Washington College of Law and am a founding member of the Creative Commons board.

Friday, March 14, 2014

Open Educational Resources Expand Access to Higher Education in the United States

Leaders in the Obama Administration, in state governments, and in corporate America have acknowledged the urgency of increasing access to higher education in the United States - particularly through community colleges.  These leaders also recognize the importance of improving completion rates and educational outcomes for those who enroll.

 As we come to the close of Open Education Week, it is now time for these leaders to focus attention, energy and resources on the most immediate opportunity to make progress toward these goals while also freeing up billions of dollars that can be redirected toward this progress.  Make textbooks available to students for free or at very low marginal cost.

The Open Textbook Opportunity - Tidewater Community College Case Study

Sound too good to be true?  It's not, and the forward-looking folks at Tidewater Community College are leading the way.  Students at Tidewater can now save 30% of the cost of a two-year Associate' Degree of Science in Business Administration because all of the textbooks are published under a Creative Commons Attribution license which gives anyone - students and the school - the rights to freely make copies and adapt these works as long as proper attribution to the author(s) is maintained.

According to Linda Williams at Tidewater, open textbooks have not just been a cost savings but also have improved the quality of the educational experience and have opened up improvements in students' quality of life.

In one case a student - a veteran - was routinely unable to afford his textbooks until weeks into the semester.  When he enrolled in a Pre-Calculus class for which he could freely download the openly-licensed textbook, it was the first time he'd ever started a class with the required materials in hand.

In another case, a single mother who enrolled in the Business Administration degree program was able to use her savings on textbooks to buy braces for her daughter - an expense she could not have managed without these cost savings.

Why Open Textbooks Now?

Of all of the challenges facing access to education and improved educational outcomes, the problems of textbook affordability, usability, and adaptability are the key barriers that can be readily overcome. The Tidewater case should not be an exception - let's make it the norm.  Educational materials are moving from print to digital, but currently they are still expensive, subject to extensive restrictive copyright licensing terms, and reside behind a password-protected paywall.  To adapt the famous lines from President Reagan, leaders, use smart policies that promote open educational resources to tear down this wall!

 By shifting to high quality OER, educational institutions at both the K-12 and tertiary levels can redirect billions of dollars into improved access and outcomes that currently flow into a textbook production system that is highly inefficient, a system that transfers significant wealth out of the educational sector and into the pockets of shareholders in a handful of publishing firms without corresponding benefits.

To be clear, there are historical reasons for this that predate the Internet.  The Internet is the game-changer, and while these firms currently are part of the problem, they also have the opportunity to become part of the solution.

How? By embracing the production of Open Educational Resources.  These aren't free to produce or update, but production, adaptation, and quality control can all be done far more efficiently and at significantly lower cost than is currently the case. Just ask the folks at OpenStax College who are publishing top-notch textbooks that are free to download and are available in print for about $30.

Who Will Offer the Next Degree Program Built on Open Educational Resources?

With the pool of high quality, openly licensed textbooks and other educational resources growing every day, what traditional brick-and-mortar educational institution will be next to follow Tidewater's lead and start using OER to promise students from the beginning that the cost of their textbooks will be free, at very low cost, or covered by the cost of tuition?

Tuesday, December 31, 2013

Please Support Creative Commons

It's not too late.  If you haven't already done so, please help support Creative Commons.   Find out how you can help support open education, open culture, open government, open science, and much more.

To donate:


Saturday, November 30, 2013

Creative Commons Licenses 4.0

After a significant international public consultation process spanning two years, Creative Commons has released Version 4.0 of the Creative Commons licenses.  This effort, led by Creative Commons General Counsel Diane Peters, and the CC legal team of Sarah Hinchliff Pearson and Kat Walsh, with significant engagement and input from the fantastic Creative Commons Affiliate community has produced a robust and elegant license suite that should serve the commons well for years into the future.

For details of what's new and why, I think Diane says it well here.

This is just a heartfelt thank you to Diane, Sarah, Kat, and to all of the affiliates and Creative Commons supporters who gave so generously of their intelligence, legal expertise, and good common sense to make the improvements we now have.  Working with this community of talented, dedicated lawyers who have kept the public interest at the forefront of their thinking has been among the greatest professional pleasures I have been privileged to enjoy.

Congratulations! ¡Felicitaciones! 御目出度う!Parabéns!  Herzlichen Glückwunsch!  تهانينا!
Gefeliciteerd! 恭喜Felicitacions! 축하합니다! Binabati kita! Félicitations! बधाई हो! Grattis! מזל טוב! Tillykke! Baie geluk! Hongera! Congratulazioni! مبارک ہو! Gratulerer! ขอแสดงความยินดี 
Gratulacje! Tebrikler! Συγχαρητήρια! Selamat! Til hamingju! Поздравляем! Շնորհավորում եմ!
Čestitamo! Onneksi olkoon! Gratulálunk! Xin chúc mừng! Blahopřejeme! Palju õnne! অভিনন্দন!
Вітаємо! Apsveicam! សូមអបអរសាទរ! გილოცავთ! Честито на печелившите! تبریک می گویم
Blahoželáme! Tahniah! ຊົມເຊີຍ! Vobis congratulor! अभिनंदन! Felicitări! Təbrik edirik! வாழ்த்துக்கள்!
Prosit! Алал да му е! Sveikiname! అభినందనలు! Ngiyakuhalalisela! Ndiyavuyisana nawe!
Kuttyktaimyn! Баяр хvргэе Asengamhlophe! Vadaiyaan! E ku ori ire! Imelu Nke Oma! Arahabaina! Comhghairdeas!

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Sunday, November 10, 2013

Recent public speaking

Rather than post for each speaking engagement, I'm posting a summary of a group of talks with links.

From the most recent backward.

Engadget Expand NY - Know Your Digital Rights
Nov. 10, 2013
What happens when your cloud storage provider is seized by the government, goes bankrupt, or won't let you retrieve your data?

University of Pittsburgh - Open Access Policies:  Coming Attractions
Oct. 24, 2013
Discussing where we are in OA.

Haverford College - Intellectual Property in the Academy:  Who Owns It?
Oct. 21, 2013
You'd be surprised.

Bucerius Law School (Hamburg) - Limiting Secondary Liability to Make Space for Innovation
Oct. 11, 2013
Safe harbors for Internet Service Providers are not just a means of allowing these services to exist.  They are part of a positive commitment to promoting innovation.  Although some aspects of notice-and-takedown need reform, the basic policy decision in the US and EU to limit copyright liability for these providers has been a resounding success.

American University Washington College of Law - Governance of the Internet: Spying and the Case of Brazil
Oct. 3, 2013
Discussion of revelations of NSA spying on friendly government leaders

Oklahoma State University Constitution Day Speaker
Sept. 5, 2013
The Open Access Movement represents an embrace of free speech values.  Even though the Supreme Court will not require open access as a constitutional right, the goals of the movement align with the reasons for protecting the right to speak and the right to gain access to information.  This talk reviewed the constitutional relationship between copyright law and free speech and then explained how open access is consistent with both authors' rights and the freedom of expression.

Saturday, December 15, 2012

Creative Commons is 10 years old

CC Celebrates 10 Year Birthday

How time flies!  Here we are, 10 years after we launched the licenses into the world.  So many happy surprises.  The supporters, adopters, and the extraordinary network of affiliates and projects around the world.  I want to express thanks and admiration to all.

We still have much more to do, and we continue to need support.  I'm looking forward to the next decade, and thanks in advance to all who have been able to support us along the way.

Second Global Congress on IP and the Public Interest

The Second Global Congress on Intellectual Property and the Public Interest is being held on December 15-17, 2012 in Rio de Janeiro.  Information on the schedule, live (and later, archived) webcast links are here.

Twitter feed is at #gcongress.

Friday, September 21, 2012

Still Waiting on Obama

Does the Obama Administration believe in the power of the Internet to maximize the value of public investments in scientific research? We will soon find out. Each year, the government spends about $60 billion on basic scientific research. About half of this money goes to the National Institutes of Health, which has an Internet-friendly Public Access Policy that requires all grantees to provide a copy of journal articles and other published results of taxpayer-funded research to be posted online within one year after publication. This policy has bipartisan support and has been an unqualified success. So, why not require the other agencies that fund basic research, like the National Science Foundation, NASA and the Department of Energy, to do the same?
The White House is in the process of deciding how to answer this question. Specifically, the Office of Science and Technology Policy asked for public comment on the issue of open access to science journal articles and scientific research data arising from all federally-funded research - twice. The responses to the White House inquiries show that posting scientific research online benefits multiple audiences: (1) researchers working from home or from a place where they do not have access to institutional subscriptions; (2) entrepreneurs who lack the funds to purchase expensive journal subscriptions; (3) students whose schools cannot afford subscriptions to all the relevant journals; (4) patients and their families who want to read the medical research for themselves; and (5) text mining software that can aid all of the above in interpreting the journal literature to make decisions about new research paths and to make new discoveries about patterns and associations that a human reader alone would never see.
The President has the authority to require that researchers who receive federal grants must agree to provide public access on the Internet to copies of research articles arising from this federal support. Such a policy is fully consistent with copyright law because authors of these articles make a choice to allow their articles to be posted online in exchange for the federal funding that allows them to do the research and write these articles. The Administration has delayed in exercising this authority because a group of journal publishers oppose the principle of taxpayer access to taxpayer-funded research even when the evidence is clear that the NIH policy does not impact their subscription revenues.
Frustrated by this delay, three open access allies, Heather Joseph, John Wilbanks, and Mike Rossner, and I lodged a petition on the White House's "We the People" website. The petition asks the Administration to extend the NIH Public Access Policy to all federal agencies that fund scientific research. If a petition gets 25,000 signatures within 30 days, the Administration will issue an official response. We posted our petition on Sunday, May 20th, and started a web site,, to explain why. Researchers, students, librarians, innovators, patients' advocacy organizations, and Internet supporters of all kinds have risen up to meet the challenge, and the petition passed the 25,000 mark in just two weeks on Sunday (June 3, 2012).
Now that the Administration has to respond at least to the petition, will it side with the public or with the group of publishers who actively resist the idea that publicly funded research should be available on the public Internet?
Michael Carroll is a Professor of Law at American University Washington College of Law, Heather Joseph is the Executive Director of the Scholarly Publishing and Academic Resources Coalition, John Wilbanks is a Senior Fellow at the Ewing Marion Kauffman Foundation and runs the Consent to Research Project, and Mike Rossner is the Executive Director of the Rockefeller University Press, which publishes three influential journals in the life sciences that make their content freely available online six months after publication.

On Information Justice (Book Review)

This is a cross-post of my response to Madhavi Sunder's book From Goods to a Good Life in a blogging symposium over at Concurring Opinions.

Like the other commenters on From Goods to a Good Life, I also enjoyed the book and applaud Professor Sunder's initiative in engaging more explicitly in the values conversation than has been conventionally done in IP scholarship. I also agree with most of what the other commenters have said.  I want to offer plaudits, a few challenges, and some suggestions about future directions for this conversation.

Plaudits.  In the spirit of showing-not-telling, Professor Sunder's concrete examples of borrowing practices across the world and in different creative and innovative sectors give force to the argument that all culture is participatory and that the real question is who is allowed to participate and under what terms. I particularly enjoyed the fan fiction chapter (and the article upon which it is based), the Hollywood/Bollywood chapter, and the engagement with the thorny topic of "traditional knowledge".  On this last, like others, I'm less sanguine about the prospects for greater propertization than is Professor Sunder, but certainly there are ways in which the poor might more effectively use the existing legal structure to exercise greater control.

I also think that building out the case for cultural participation as self-actualization (at both the individual and community levels) is nicely done.  To the extent that this book is a response to selected scholarship and the work of certain public intellectuals, Professor Sunder rightly critiques unstated assumptions upon which traditional law-and-economics work is built, while also critiquing the romance of the public domain.

I did not read Professor Sunder to be making an argument for specific law reform - although some options are mentioned - rather than to advocate for a vision of the good.  I took this to be a political argument about why and how the cultures, contributions, and productive capacity of marginalized populations deserve greater recognition in society, first, and in law to the extent that this is not already done.

Challenges. On this last point, I would like to understand better the relation between Professor Sunder's cultural critique and her legal critique. Somewhat like a cultural fitness instructor, Professor Sunder urges us to get off the couch, flex our creative muscles and ensure that everyone in society is equipped with a cultural gym pass and the time and support to put it to use.  But, time and attention are limited resources.  When living the good life, what is the right mix of "writing" and "reading" culture?  Can we have both a participatory and a popular culture?  Writing in a moment when so much time and attention around the world is devoted to corporate-produced mass culture, I understand why Professor Sunder focuses her energy on the case for participation. "[T]he end is participation in meaning-making and in having the capacity to earn a livelihood to achieve the life one scripts for herself." [100] But, there are trade-offs.  A shared experience as audience plays an important role in promoting cultural cohesion.  I would like to know whether there could be a point of too much participation within Professor Sunder's conception of the good life.

This book is directed at the law-in-selected-scholarship, and, very generally, at the law on the books, rather than at the law in action.  Fair enough.  But, the version of efficiency from the scholarship that Professor Sunder targets is assuredly an artificial one that emerged when Professor Landes and Judge Posner made their move from welfare to wealth as the unit of measure.  They, and their followers, made this move without taking any meaningful account of the gap between the willingness-to-pay and ability-to-pay, the distortions caused by money's declining marginal value, the incommensurability problem, and the gap between partial and general equilibria, among other shortcomings.

Moreover, as I and others have written at greater length elsewhere, even when one accepts this version of efficiency, its internal logic, if fully explicated, would likely lead the law on the books to align more closely with that suggested by Professor Sunder's approach than is readily appreciated.  The first order question is why promote progress, and how does one define it?  Second is whether intellectual property law or a direct investment policy would better achieve efficiency, however measured. The law and economics literature lacks a general framework for arriving at the most efficient choices among these approaches.  This point gets a brief mention in the discussion of prizes in the last chapter, but I would have thought it to be more central to Professor Sunder's thesis. Third, even to the extent that creating and enforcing intellectual property rights is justified on efficiency grounds, the subject matter, scope, and duration of these should vary sufficiently to leave more room than existing law does for participatory culture.

Finally, I was expecting a more explicit human rights turn or at least more thoroughgoing engagement with the body of international human rights law in which Professor Sunder's thesis sounds.  She does acknowledge the link at pp. 90, 92-93, and 101, but I would have been particularly interested to understand how Professor Sunder would resolve the conflict between the moral rights justification for authors' rights and her argument for a fair and participatory culture.  Human flourishing cuts both ways.  Your right to preserve the integrity of your work on personhood grounds limits my ability to participate in culture by mashing it up.

Future Directions. My sense is that those interested in efficiency as measured by welfare and those approaching intellectual property from Professor Sunder's approach might well come to incompletely theorized agreement about the proper delineation of most rights.  The values conversation may provoke greater disagreement about what other policies might be desirable to support broader cultural participation.  Moreover, the values conversation is directly relevant to how one conceives of, and chooses to pursue, the good life within the legal framework.  I would submit that this conversation should lead toward a working theory of information justice, which would certainly draw from more general theories of justice, including those upon which Professor Sunder relies.  On this point, I would put in a plug for Peter Drahos' elegant and, at the moment, ridiculously scarce A Philosophy of Intellectual Property, which lays a rich intellectual foundation upon which this conversation could fruitfully build.  That said, thank you, Professor Sunder, for a good read and much food for thought.

Tuesday, July 03, 2012

World Bank Open Access Policy

As many may know, on April 1, 2012, the World Bank adopted an important open access policy for formal publications by World Bank staff.  This is a very important step for the open access movement and for Creative Commons.

Two aspects of the policy that deserve special mention: (1) deposit is required; and (2) the policy focuses on the terms of reuse in addition to online availability.

The key features are that World Bank staff are required to deposit their research into the Bank's Open Knowledge Repository. Internally published research will be published under the Creative Commons Attribution 3.0 Unported License. Externally published articles will be published under the Creative Commons Attribution Non Commercial No Derivatives 3.0 Unported License unless the publisher accepts the CC BY license.

On May 21, 2012, I participated in a panel discussion about how this policy will contribute to the Bank's pro-development mission.  The video from that is here:

video platformvideo managementvideo solutionsvideo player

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Saturday, June 02, 2012

Open Access Petition Featured on Wikipedia

Thanks to all who have supported our petition to the White House to require that the published results of all research funded by the federal government be posted on the Internet.  And, special thanks to the Wikimedia Board and the Wikipedian community for their support.  Today, we made the front page.  We are almost at the 25,000 signatures we need to spur an official response.  If you haven't already done so, please sign the petition!


Tuesday, May 22, 2012

Please Support the Open Access Petition

Yesterday, May 21, 2012, we launched a big push to get 25,000 signatures in the next 30 days on a White House petition asking President Obama to implement a strong public access policy. It's time to ask the Obama Administration to step up and do the right thing.  We have had four years of success with the NIH Public Access Policy and two Requests for Information on public access during the past few years.  A strong showing of support through this petition could very well be the catalyst the White House needs to take decisive action and implement a strong public access policy.

To reach our goal of 25,000 signatures -- and preferably blow it out of the water -- please pass along these two relatively small asks.

1. Sign the White House petition at It takes about 2 minutes to do, and anyone over the age of 13 can sign -- not just Americans.

2. Urge your friends, family, and colleagues to sign the petition as well.  To pass the 25,000 mark, making the petition go viral is critical and we need your help to do so. Consider:
            - Watching our 90 second youtube video promoting the petition, and sharing it
            - Posting about the petition on your personal and organizational facebook and twitter accounts (#openaccess, #OAMonday). Let people know that you've signed!
            - Sending a short email to friends and family urging them to sign
            - Writing op-eds or letters to the editor about the petition and its potential impact for students
            - Blogging about it
            - Upvoting stories about the petition on Reddit, Slashdot, and other social news sites

Thanks in advance for your help, and it will certainly be a very exciting next couple of weeks!


Thursday, September 08, 2011

Washington Declaration on Intellectual Property and the Public Interest

At American University, we recently hosted an amazing gathering of about 170 thoughtful experts on intellectual property law from around the world to chart policy proposals that would make intellectual property law better serve its role in society. This inaugural Global Congress on Intellectual Property and the Public Interest discussed and debated a range of policy initiatives that would better adapt and rebalance the rights and obligations of rightsholders and the public.

There are many feasible opportunities, but recently, the attention of some policymakers has been turned toward misguided or ham-handed enforcement proposals.  So, it's time to change the conversation.  Please help by signing the Washington Declaration on Intellectual Property and the Public Interest.

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Thursday, June 23, 2011

YouTube and Creative Commons

So, this blog has been dormant for some time.  I've been swamped, but it's time to get back to business.  Here's a short post just to make sure not to let this development go unmentioned by me.  YouTube has embedded the ability for users to license their videos under the CC Attribution Only license (a.k.a. CC BY)! Details here. Already a repository of more than 10,000 videos under this license are available.

From the day Creative Commons launched, we've sought to work with companies that provide content platforms to embed CC licensing as a choice for creators who want a different deal than the one that all-rights-reserved copyright law offers.  It's been a long time coming, and I'm personally grateful to the staff at CC and at Google for making this happen.

The CC By license allows others to translate, mash-up, or otherwise adapt these videos as long as credit is given as directed by the copyright owner.  I hope that the creative folks out there make use of the freedom that the CC license offers.  Stay tuned . . . .

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Tuesday, August 24, 2010

Benjamin Kaplan - R.I.P.

I've been away from the blogosphere for far too long and plan to reenter in the coming month or so. A lot is going on with open access, open education, Creative Commons, and at American University Washington College of Law.

But for now, I have to pay my respects to Benjamin Kaplan, who sadly has passed. A pioneer in the field of copyright law, Professor Kaplan also set the gold standard for authorial elegance in An Unhurried View of Copyright.

His impact on the field will be felt for generations to come.

Rest in peace.


Monday, April 05, 2010

IP/Gender - April 16, 2010

Seventh Annual Symposium, April 16, 2010

American University Washington College of Law
4801 Massachusetts Ave, NW
Washington, DC 20016

Sponsored by American University Washington College of Law’s

  • Program on Information Justice and Intellectual Property
  • Women and the Law Program
  • Journal of Gender, Social Policy & the Law

In collaboration with Dan Burk, Chancellor’s Professor of Law, U.C. Irvine

Over the past seven years, the IP/Gender symposium has provided a forum to examine and discuss research on gendered dimensions of intellectual property law. Because issues of gender in intellectual property have been under-appreciated and remain under-theorized, much of this work has been exploratory and pioneering. Topics discussed in past years have ranged from the impact of intellectual property law and policy on gender-related imbalances in wealth, cultural access, political power, and social control; creative production and gender; the effects of stereotyping and of actual and rhetorical feminization and masculinization of participant roles upon intellectual property stakeholders; the gendered development of IP doctrines and doctrinal categories; related issues in the teaching and practicing of intellectual property; feminist jurisprudential insights about intellectual property law; and female fan cultures and intellectual property. The Spring 2010 symposium on Gender and Invention will be highly interdisciplinary, including historians, social scientists, legal academics, cultural scholars, and practicing lawyers.

Call for Papers - International IP Enforcement

On June 16-17, 2010, American University Washington College of Law’s Program on Information Justice and Intellectual Property will host a workshop of scholars and advocates to assess the potential public interest impacts of the shift of international intellectual property norm setting to an enforcement agenda. This workshop will be followed by the launch of a working paper series on Public Interest Analysis of the International Intellectual Property Enforcement Agenda.

The enforcement agenda includes the proposals for an Anticounterfeiting Trade Agreement (ACTA) at its center, but also includes other manifestations including the expansion of enforcement provisions in free trade agreements, seizures of drugs in Europe, broad “anticounterfeiting” national laws and bills such as that passed in Kenya and being considered in other African countries, pressure on countries through Special 301 and GSP benefit determinations, foreign aid and technical assistance directives, and other means.

PIJIP seeks to promote the creation of short (8-12 page) plain language policy papers analyzing possible public interest impacts of elements of the enforcement agenda. The project is particularly interested in analysis of leaked text of major proposals for ACTA. For copies of the text of ACTA proposals, and other resources on elements of the enforcement agenda, see the project’s collaborative website:

Specific questions of interest to the project are detailed below and in the attached description of research questions generated at a previous workshop on this issue (also available at the iipenforcement site). However, proposals on any aspect of the public interest impact of the enforcement agenda will be entertained.

Academics and policy advocates are invited to submit an abstract of a proposed paper on this topic for presentation at the workshop. Accepted papers for the workshop will receive travel assistance to attend the workshop in Washington D.C. Completed papers will be eligible for publication in the PIJIP Working Paper Series. A Prize of $1,000 will be granted for the top five completed papers presented at the workshop and submitted for publication in the Working Paper series.

PIJIP is particularly interested in examinations of the following issues:

• Section by section analysis of the how adoption of major ACTA proposals would alter the law of a given country (either a current ACTA negotiating country or a country not yet in ACTA negotiations).
• Analysis of the impact of ACTA’s proposed institutional mechanisms on the current international institutional structure for intellectual property matters (including, e.g. WIPO and WTO) and how such alterations will impact public interests;
• Analysis of the potential impact of ACTA proposals or other elements of the enforcement agenda on specific public interest concerns, including
o access to knowledge imbedded goods and services,
o libraries,
o fair use,
o media literacy,
o public media,
o developing countries (including if ACTA were globalized).
• Analysis of the legality of elements of the enforcement agenda under international or domestic law, including, e.g.: Does the US Special 301 watch list program violate the WTO’s international dispute resolution mechanism? Do elements of the enforcement agenda violate international human rights obligations?

Papers will be expected to be 8-12 pages in length and written in general policy paper (ie “white paper”) language geared toward policy advocates, government officials and other interested parties, but not an exclusively legal audience.

Submission of abstracts should be made to by April 15, 2010. Draft papers for presentation at the workshop will be due by June 1, 2010. Completed papers for publication in the Working Paper Series will be due by July 30, 2010.

Questions can be sent to addressed to Sean Flynn, Associate Director, PIJIP, at

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