Today NPR played Terri Gross' interview with Triumph the Insult Comic Dog. You can listen to it here. He's funnier when you can see him but what isn't there to love about a rubber dog puppet?

Best line: "I can't believe the government is paying for this interview."

I can't either, Triumph.

Lawrence Lessig spoke this evening at the NYU Colloquium in Law, Philosophy, and Political Theory, presenting excerpts from his upcoming book Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. This was a great talk--one of the best I've seen--so I'll try to give those who missed it a taste of what happened. Be warned--long post below.

First, I’d encourage everyone to read the paper—most particularly those who aren’t yet interested in IP issues. Lessig is quite a good writer, and presents the issues in an engaging fashion. But for those too lazy to do this, the heart of his concern is this:

“Free cultures are cultures that leave a great deal open for others to build upon; unfree—or permission cultures—leave much less. Ours was a free culture. It is becoming much less.”

Essentially, in response to the perceived threat of the Internet to creative property rights, corporations and special interests are taking steps that threaten the underlying values of free expression, creativity and progress that such rights were intended to protect. They seek to turn our culture into a permission culture, where everything that has value is owned, and those who wish to use it must ask. This marks a radical departure from the old understanding of creative rights.

But you can get all that stuff by reading Lessig himself; this post is about the lively Colloquium itself. With apologies in advance to anyone whose position I’m about to mistake, or whose incisive remarks I’ve ignored, let me try to reconstruct some of the more interesting exchanges:

Thomas Nagel pressed Lessig on his instrumentalist justification for intellectual property rights. Isn’t intellectual property one area where the Lockean natural-rights intuitions are strongest, where we really do create something out of nothing, and hence needn’t worry about the proviso about leaving as much and as good for others? And even on the instrumentalist view, where’s the common metric for balancing the competing values?

Lessig evaded the first question entirely—more on that later—but his response to the second part was quite interesting. He said that, although he’d done it before, he didn’t really want to get into the cost-benefit game. Instead, he wanted to make the more libertarian case that there simply exists a presumption of being free to engage of expressive activity, and that any attempt to suppress it must give good reasons. Copyright can be justified on incentive grounds as intertemporally expression-maximizing: we trade off some limitations on expression now in order to encourage creation of more for later. This framework allows one to see the problems of the Sonny Bono Copyright Extension Act, which extended copyright terms retroactively, and hence could not possibly have encouraged more expression.

The problem here, as Ronald Dworkin swiftly pointed out, is that this expressive interest just doesn’t seem particularly implicated in the core aspects of copyright. It’s clear how my exclusive control over derivative works stops you from expressing yourself through creating such a derivative work, but it’s not clear what sort of “expression” is involved in Xeroxing a book and selling it on the street—or, for that matter, sharing Britney Spears music on the internet.

Lessig’s response—that expression encompasses access to expressive works—seemed to be a bit of a retreat: redefining the desideratum as a broader notion of a flourishing creative culture. Which is fine, but an interest in this seems rather different in kind from a straightforward claim-right to express oneself, and perhaps requires a fair degree of cost-benefit balancing after all. That is, to get as much mileage from “maximize expression” as he needs, he has to load the term with a lot of baggage, enough so that maximizing it really starts to look like a cost-benefit exercise whose weightings have to be scrutinized.

There was another interesting exchange concerning an alternate, “conservative” justification for intellectual property rights: the desire to protect the integrity of certain culturally significant works from debasement (this included the first of many references to Disney pornography, and set the stage for a most unexpected digression on Smallville slash, and the public’s interest, or lack thereof, in its production). If we’re willing to prevent someone from painting his historic townhouse chartreuse, can’t we say “no” to Mickey Mouse pornography?

Indeed, as Lessig reminded the audience, the Dr. Seuss estate made just this very argument in support of the Copyright Term Extension Act. But Samuel Freeman protested that such integrity-protection doesn’t really seem appropriate; should the Catholic Church have rights against attacks on the integrity of the Pope? We can’t even ban flag burning; isn’t there a rather less compelling interest in preserving Snow White’s virtue? Stephen Perry joined in, contesting the historical preservationist analogy itself—unlike a wrecking ball hitting Penn Station, Mickey Mouse pornography doesn’t actually destroy Mickey Mouse, as there’s no physical Mickey to destroy; it simply suggests new ways of reimagining him.

My own view is simply that copyright is an awfully odd way of achieving preservationist goals: sure, the creator may have an incentive to maximize his property’s commercial value, but the same can be said about building owners, where this isn't seen as enough guarantee. Rather than lock down everything in order to preserve the few things that will (eventually) turn out to have cultural significance, wouldn’t it be more efficient to have a cultural commission protect only those icons that have actually reached this status?

Now, I said I’d get back to Lessig’s handling of the natural rights argument. I wasn’t the only one frustrated by his complete evasion of the fruits-of-my-labor-IP argument, apparently, because it came up later in a number of different guises. Why don’t I own the creative work I’ve created?

Lessig’s response was that he doesn’t deny the initial intuitions pushing in that direction, but that we can’t be sloppy about taking it to unjustified extremes. Property isn’t as simple as this sort of thinking implies; what does it mean to say “I own this song?” Now, the Lockean impulse might push one to say that I deserve to capture the full value of my creation—but this just can’t be right. We want free-riding, at least free-riding of a certain sort; a world where everything that has value, has an owner, is a rather dystopian one—imagine needing permission and a license for one’s use of calculus, of English, of ones and zeroes. Free-riding is necessary for society to function. More generally, Lessig highlighted the inadequacy of the Lockean take on intellectual property—even assuming that generating a new idea, song, or novel is a purely internal, creative activity, why should my doing so give me the particular rights that it does? Bundles of rights that seem necessary in one domain—if I gather sticks and make a chair, I get to use the chair, and you can’t take it from me, because if you do I no longer have the chair I made—don’t as clearly fit in others—your singing my “Ode to Chairs” doesn’t stop me from singing it.

A further critique can be made, and this is in fact a major theme of Lessig’s paper: this whole idea of creative work embodying the purest form of something-from-nothing creation is eminently contestable. Indeed, the whole concept of the author as someone who creates out of himself is of rather recent vintage in human history; creativity has often been seen as embodying outside inspiration rather than internal genius. Most creative work, oddly enough, does not get “produced” by isolated hermits. Just look at the acknowledgements section of the next academic paper you read, or, for that matter, count the links on a website. A great deal of creativity is, as Lessig puts it, of the “rip-mix-burn” kind, bricolage. The Lockean story just doesn’t know what to make of that—and, unfortunately, neither does our copyright law.

There was a lot more—including debate over some specific policy proposals—but I’ll have to pick this up later.

I agree with Amanda that the guidelines for bone marrow donation are too strict. And they're not just strict, they're arbitrary. According to the CDC, a full 33% of new HIV infections are in men and women engaging in heterosexual intercourse. (42% are from men sleeping with men, 10% from IV drug users). 54% of new HIV infections in the U.S. are in African-Americans. I don't see them stricken from the bone marrow donation eligibility list. No one wants to be careless with tissue recipients' lives. And AIDS often isn't detectable in blood tests for a year after infection. However, outlawing donors who have had a homosexual experience since 1977 isn't the answer. If the Red Cross wants to be stringent, a more effective method would be to outlaw tissue from donors with any kind of new sexual partner or IV drug use in the past six months or year. Though that would eliminate a lot of possible donors, it only eliminates those with actual risk and it effectively does so. Perhaps, especially in this case, a more rational method would be to allow the recipient to make the decision about whether to receive the marrow. Knowing the donor's risk factor history (drug use history, number of sexual partners, heterosexual/homosexual, country of origin) and knowing that the AIDS test may not detect the virus until six months after infection, the patient can make an informed decision considering the relevant factors of her condition (likelihood of finding another donor, progression of her disease). As a patient, I know that I would appreciate the choice.

Incidentally, this isn't the only silly rule the Red Cross has about donation. I am not allowed to give blood because I'm under 110 pounds. There's nothing wrong with my blood: it's just the Red Cross being paternalistic about a decision I make with my body because they don't want me to pass out.

UPDATE:
A reader questions my use of statistics for new cases of HIV. He thinks that it's more relevant to look at "percentage of individuals within the known group (in this case, homosexual men) in comparison with other groups (homosexual women and heterosexuals)" and examine total numbers of infections rather than new infections.

The reason I chose new cases is because old cases are easily detectable with an inexpensive test. Even though a lot more homosexual men are living with HIV than heterosexual men (I think it's four times as many), blood that's been exposed to the virus greater than a year ago can be screened for the virus with excellent accuracy. However, tests are less accurate for blood that has been exposed to HIV within the past six months. And almost as many new cases of HIV occur in heterosexuals as in homosexual men. So a homosexual man who hasn't had a new partner since 1996 and tests negative for HIV shouldn't be barred from donating blood but perhaps a heterosexual man who tests negative but has had six partners in the past six months should. The only reason I can imagine for the no-gay condition is this: perhaps the benefit of the additional supply of blood/marrow from the male gay community isn't great enough to account for the cost of all those additional HIV tests that have a greater probability of coming out positive. However, I can't imagine that this is the case considering the great need for bone marrow (only ten donors on the registry worldwide are suitable matches for the patient in the article). If the additional testing is cost-prohibitive, then the Red Cross might only accept blood from gay donors with proof of recent negative HIV testing results. (Of course, additional testing is always done but this could be a preliminary screening criterion undertaken by the donor. Presumably, someone who's willing to undergo surgery to save a person's life is also willing to pay for and take a test to prove the purity of his blood.) Or, as I advocate, the Red Cross could allow the recipient to choose the risk level with which she is comfortable, weighing the relevant factors of her condition. This might not be executable with blood, as it is administered on a basis of immediate need, but bone marrow transplants are planned well in advance and, with minimal administrative effort, patient autonomy could be respected.

It's not too hard to run a blood drive that collects a long waiting line of volunteers -- the U Chicago Scavenger Hunt manages that every year -- but willing bone marrow donors are in shorter supply. To actually donate marrow requires a surgery lasting an hour or two, performed under general or regional anesthesia. Since it's (understandably) harder to find willing donors and the donors must undergo a physical exam prior to surgery anyway, you might figure that the first eligibility guidelines for marrow donors would be less concerned than those for blood donation with screening out donors who might have been exposed to certain diseases, such as malaria, for which tests are readily avaliable.

They are, it seems, or they don't post the whole laundry list of eligibility requirements online. Regardless, "If you have or are at risk for HIV (AIDS), you cannot become a marrow donor." Thus, if "you are a male who has had sex with another male since 1977, even once" you may not even register as a bone marrow donor; if you should have sex with a man after you have registered, then your name is stricken from the list.

And so Brian Fletcher, a fourth year at the Pritzker School of Medicine at Chicago, was removed from the list of donors after answering "yes" to that question. He had "received a phone call informing him that in an undisclosed coutnry outside the US, a fifty-year-old woman diagnosed with acute myelogenous leukemia needed a bone marrow transplant, and he was one of ten people in the world in the international registry that was a potential match." ["Bad Blood: Pritzker Student Confronts Donor Discrimination" in the Chicago Weekly News 11/20/03; sorry, not-online]

To find out whether he were an exact match would require additional blood and tissue tests. I presume that the hospital is testing these donors for AIDS, after all, since it doesn't seem to expect that an ordinary straight woman -- who slept with Adam, who slept with Barbara, who never mentioned selling sex for money to the British fellow Carl who lived in Congo for five years while doing drugs by needle with his lover David -- would know all those instances of her partners' partners' histories. So why can't they just change the regulations, on bone marrow donors at least, to allow men who've slept with men to give blood?

The HIV/AIDS question as it appears on the Red Cross form:

Those who are at increased risk for becoming infected with HIV are not eligible to donate blood. According to the Food and Drug Administration, you are at increased risk if:

you are a male who has had sex with another male since 1977, even once;
you have ever used a needle, even once, to take drugs or steroids that were not prescribed by a physician;
you have taken clotting factor concentrates for a bleeding disorder such as hemophilia;
you were born in or lived in Cameroon, Central African Republic, Chad, Congo, Equatorial Guinea, Gabon, Niger, or Nigeria since 1977 (This requirement is related to concerns about HIV Group O.
you have taken drugs or money in exchange for sex since 1977;
you have ever had a positive test for HIV virus;
you have symptoms of HIV infection including unexplained weight loss, night sweats, blue or purple spots on or under the skin, long-lasting white spots or unusual sores in your mouth, lumps in your neck, armpits, or groin that last more than a month, fever higher than 99 degrees that lasts more than 10 days, diarrhea lasting over a month, or persistent cough and shortness of breath;

Wait for 12 months after close contact with someone who is at an increased risk for HIV infection. This occurs when paying to have sex, as a result of rape, or when having sex with an IV drug user.

Apologies in advance for blegging:

To any Hyde Park readers, I'm looking for a 2-bedroom apartment available for six months (January to June, roughly speaking). On matters of price, location, etc., etc., I have preferences but they're all negotiable. If anybody knows of people with available apartments in Hyde Park, please drop me an email. Thanks.

En Banc's Chris Geidner has a pretty witless post up suggesting that Eugene Volokh is either cowardly or irresponsible. I was going to explain why he was wrong, but his co-bloggers seem to have mobbed the comments section to do so themselves. (Chris's basic argument seems to be that making off-hand comments that the Federal Marriage Amendment is likely to pass is irresponsible of Volokh supports gay marriage and cowardly if he doesn't.) There may be cowardly or irresponsible bloggers out their, but Volokh isn't. 'Nuff said.

You can access (for free) assorted state-specific advanced directive forms here. A health care power of attorney is someone who makes your health care decisions should you become incompetent. A living will outlines the treatment you want administered should you be in a permanently unconscious or terminal state. These are important documents to have, even if you are young, because sudden, devastating accidents can happen any time and distraught family members may not know or act in accordance with your wishes. Some states even have symbols that appear on your driver's license to notify emergency workers of the existence of an advanced directive. All you libertarian types who value autonomy should definitely take a few minutes to fill them out and make your wishes known to close friends and family members. Thanks to the New York Times for the pointer.

. . . there is nothing outside the march so nothing can be lost to it. The missing plays of Sophocles will turn up piece by piece, or be written again in another language. Ancient cures for diseases will reveal themselves once more. Mathematical discoveries glimsped and lost to view will have their time again. You do not suppose, my lady, that if all of Archimedes had been hiding in the great library of Alexandria, we would be at a loss for a corkscrew?

Housman: Anyone who says "So what?" got left behind five hundred years ago when we became modern, that's why it's called Humanism. the recovery of ancient texts is the highest task of all - Erasmus, bless him. It is work to be done. Posterity has a brisk way with manuscripts: scholarship is a small redress against the vast unreason of what is taken from us - it's not just the worthless that perish, Jesus doesn't save.
Pollard: Stop - stop it, Housman! - the sun is shining, it's Saturday afternoon! - I'm happy! The best survives because it is the best.
Housman: Oh . . . Pollard. Have you ever seen a cornfield after the reaping? Laid flat to stubble, and here and there, unaccountably, miraculously spared, a few stalks still upright. Why those? there is no reason. Ovid's Medea, the Thyestes of Varius who was Virgil's friend and considered by some his equal, the lost Aeschylus trilogy of the Trojan war . . . gathered together in sheaves, along with hundreds of Greek and Roman authors known only for fragments or their names alone - and here and there a cornstalk, a thistle, a poppy, still standing, but as to purpose, signifying nothing.

AEH: I would join Sisyphus in Hades and gladly push my boulder up the slope if only, each time it rolled back down, I were given a line of Aeschylus.

As Amy says, there are definitely worse things that could happen to us than exceeding our allotted bandwidth. Still, my apologies for getting behind and not noticing the imminence of our troubles. If it's any excuse, at the time that the trouble hit I was somewhere in the middle of my 48-hour ill-fated trip across the Atlantic (lost an engine over the North Atlantic, got grounded overnight in Dublin by maximum-work-hour regulations, had my plane from Chicago to Indianapolis fogged in in Madison, and narrowly made my deadline thanks to the lovely folks at American deciding that my flight to Indianapolis should take precedence over some flight to Nashville).

In any case, if you missed it during our bandwidth bust, here are Stuart Buck's fabulous answers to our 20 Questions.

Apologies for our recent downtime, to all of you who missed your daily dose of Crescat wit yesterday. We exceeded our bandwidth limit for the month, but we've now upgraded our account. I'd say that we're hoping there will be no more problems in that area, but honestly we'd all be thrilled to pieces if we need to upgrade again soon.