My community is under siege. Warring forces have occupied Saint Paul. War-like language dominates conversation and reporting. Troops. Soldiers. Marching. Clashing. Tear gas. Helicopters. Blockades.

My community is a pass through for the commerce of politics. Millions raised and millions spent. The everyday occupants of public places and spaces called home are displaced while the convention takes over. Saint Paul and nearby Minneapolis politicians were promised lots of money would be spent in our local economy. They took the bait.

Security is big business too. When an operation like the RNC comes to town the locals loose the right to keep peace in their own way. Government and private funds flowed from somewhere. Forces were amassed and riot gear was stockpiled. A city block was surrounded with steel fences and security checkpoints. National Guard and city police officers were sent in from other states to help lockdown the convention site. Extra highway patrol cars cruise both Minneapolis and Saint Paul and are stationed at exits and entrances on the interstate highway, roadblocks at the ready to cut off and reroute traffic.

My community is awash with protestors of every ilk. Some have connections here and have been welcomed by brethren with local roots. Others act in their own interest only, believing their cause is holier. And others are just plain angry with everybody and everything.

My community is a media destination. From major networks to the tiniest stations here to cover their home state delegates, from self-appointed pundits to the satire juggernaut the Daily Show, they are here with cameras, crew, lights, microphones, logos and minivans. Some are interested in covering the convention itself, but others swarm to show interaction between police, protestors and delegates outside. They fan the flame of conflict. They broadcast snippets, snappy sound bites and print attention-getting headlines that give an inaccurate portrayal of my community. I take some of our Minnesota independent media makers and citizen journalists to task for feeding the hysteria also—for not being thoughtful, thorough and persuasive to rest of the country.

Don’t You Feel It Too? practice on Aug. 31 Photo by Avye Alexandres, CC License, By, NC, SA from Flickr

This is me dancing. Photo also by Avye Alexandres. CC License, By, NC, SA

A police officer takes a picture. Photo also by Avye Alexandres

How did this happen? When we weren’t looking the business of electing a President grew so large it may be unstoppable. The personal was removed from national politics. People have abdicated responsibility for politics to a horde of corporate professionals. The possibility of democracy as a messy, vital, imperfect but redemptive tussle between people intimately connected through a mutual need to govern is a dim memory.

Protesting has become something many citizens are not willing to do. It takes money to get here, and an infrastructure to pull off a protest march—permits, legal expertise, transportation, lodging, computers, cameras and Internet access. It is risky to life, limb and a future career. It is the domain of the well financed, the almost fanatically dedicated, those with green cards and clean records, or those who think they have nothing to lose.

It’s about the commons again. We’ve lost more of what we once had together—a precious, tenuous legacy for peaceful self-governance tended and passed on from citizen to citizen over hundreds of years. The smell of money, hate and potential violence permeates. Fear follows and the very thin line between expression and oppression is crossed.

But what can I do? I am going to dance.

Don’t You Feel It Too? is a public art project by Marcus Young and his group called The Bird in the Sky Primary School of Behavioral Art. He calls it dancing where dancing doesn’t belong—a joyful protest against so much that is scripted or prescribed in our lives. He did not create the project specifically for the RNC convention but we are here as a collective force determined to create disruption for joy.

Marcus Young, creator of Don’t You Feel It Too? Photo also by Avye Alexandres

Any one can take part. We practice to perfect the form but the premise is brilliantly simple. Each dancer has earphones and an mp3 player loaded with her or his favorite music. We start out individually and then come together at a prearranged place to dance together. We don’t break any laws. We move if someone asks us to. We have no costumes or buttons or signs. We can fade in or out of the crowd because we are indistinguishable until we start dancing.

Our behavior is non-standard because it is joyful and unfettered. We smile. We dance our own kind of dance and make eye contact with viewers if they seem willing. We try not to interact verbally with people who want to know what we are doing except to say “don’t you feel it too?”

We practice balancing our interior and exterior environment—just enough into our tunes that we can find the confidence to look foolish, yet still aware and connected to the passers by.

By reading the energy and circumstances of a place we find a level of dancing that intrigues people but does not cause suspicion.

Many people can’t believe that we are not for or against anything. They can be quite insistent in their questioning: who is paying you? Who do you represent? What candidate or cause do you support? They really want to categorize us in the political spectrum. They press literature and buttons and hats on us. Some think we are advertising iPod. Some try to get us to pose for pictures with their McCain hats, Obama posters or pro- or anti-something signs. Here is a funny example of such an encounter. KRMG Tulsa Oklahoma

Minutes before our first full out “action” at the convention on September 1, there had been a confrontation of police and pedestrians—some protestors, some agitators and some people just in the wrong place at the wrong time. Many were detained and eventually arrested. Our photographer was among this group of innocents. She never did get to join us that day. To see her photos of The Shepard Road Arrests go to Flickr.

As we walked into the conference zone tear gas was still clearing from the air. Police cars and troops in minivans were zooming up and down the usually quiet streets, sirens blaring and lights flashing in a show of force. Foot patrols in body armor with shields and clubs stood in formations on street corners and at the gates to the delegate-only areas.

Helicopters circled over and over.

I was frightened. Would I be arrested for dancing on a street corner? Would I be guilty by association with troublemakers?

Then I was angry at the excessiveness of power.

I soon became curious about the people on the street—delegates? Downtown workers? Transferring busses? Tourists? Just passing through? When I plugged in my earphones and started dancing I felt empathy. These people are scared too, I thought. They have been inconvenienced and bombarded with noise. They have just had a nasty taste of violence—on both sides—barely contained.

I set my intention. I can dance. I can smile. I can change this place by breaking out of the prescribed behavior. I can help people feel better, and be connected to me and to each right now.

I knew the other dancers were out there somewhere. I switched to my second playlist and hiked over to one of the most heavily guarded gates for media and delegates. With Marvin Gaye’s sweet voice cranked up to drown out the sound of the sirens I danced my heart out for the return of humanity to this place and time. Nobody else could hear what I was listening to. They just watched and sometimes smiled or gave me nod or thumbs up. Joyfully, hopefully, peacefully I imagined a better day for democracy.

If you remember the end of the Vietnam War you probably know the song. Hum it and get up and dance.

Citizen journalist and now Disruptive Dancer for Joy Kathleen Maloney signing off.

Mercy, Mercy Me (the Ecology)

By Renaldo “Obie” Benson, Al Cleveland, and Marvin Gaye from the 1971 Album What’s Going On

Mother, mother, there’s too many of you crying
Brother, brother, brother, there’s far too many of you dying
You know we’ve got to find a way
To bring some lovin’ here today, hey

Father, father, we don’t need to escalate
War is not the answer, for only love can conquer hate

You know we’ve got to find a way
To bring some lovin’ here today

CHORUS #1:
Picket lines and picket signs
Don’t punish me with brutality
Talk to me, so you can see
Oh what’s going on, what’s going on
Yeah, what’s going on, ah, what’s going on
Ahhh….

Mother, mother, everybody thinks we’re wrong
Ah but who are they to judge us
Simply ‘cos our hair is long
Ah you know we’ve got to find a way
To bring some understanding here today

CHORUS #2:
Picket lines and picket signs
Don’t punish me with brutality
Talk to me, so you can see
What’s going on, yeah what’s going on
Tell me what’s going on, I’ll tell you what’s going on

Some stories from the dancers…

“A man came up to me after the dancing on Monday and very gently asked about what we were doing, who we were with, etc… to which I only replied ‘Don’t you feel it too?’ and told him there was a small group of us. He then said, “Well…I don’t care about the details. I think its just wonderful.”

“I have rarely felt so elated or free of inhibition in a public place. My involvement in your piece has allowed me to exercise my public-muscles to transmit joy and that is great gift. I was dancing to a piece of music that changed rhythm a lot and I made a movement a bit like a robot (by accident), the people sitting around the pond laughed and giggled. It made me feel good and made them feel good, so mission accomplished!”

“A man selling DVDs about how the Muslim world is out to destroy the West tried to put his DVDs at my feet and take pictures of me dancing joyfully with them. Not wanting to serve as an “endorsement” of his product, I just kept dancing out of frame, and he kept moving the DVDs in front of me. After a while, I decided to dance toward him as an invitation to dance with me. I must have gotten too close because he kicked me in the shin. After an initial shock, I was determined to keep dancing and smiling and kept dancing toward him. He kicked me three more times, and even though part of me wanted to kick him in the face, I resisted, and eventually he was too embarrassed or something to stick around. What a test!”

Open education is a potential solution to these complex problems.

As a part of our commitment to open education, K12 Open Ed has recently launched the first completely open kids dictionary (http://dictionary.k12opened.com). We think this is an important building block for many open education projects and invite everyone to join us in collaborating on it.

This dictionary is intended for kids, though it can certainly be used for adult learners as well. As words are completed, they will be reviewed for quality and appropriateness and ultimately “frozen” for export into a variety of formats, including text, PDF, ebooks, wikis, web, etc., for use on a variety of devices.

This work is being licensed as a public domain resource that anyone can use for any purpose. We see this as a fundamental building block for many OER projects and hope that it will be used by teachers, students, publishers, hardware manufacturers, VARs, and others.

The site includes a build-your-own-glossary tool that allows users to construct glossaries for their own books, units, courses, or web sites and export them to text, html, rtf, pdf, or wikitext. Over time, we will be adding other new features, such as audio pronunciations, pictures, support for additional languages, and a wide variety of export functions.

This is a mass collaboration project, and we hope that many people around the world will jump in and add a definition or two.

We would love to see you at the” dictionary”:http://dictionary.k12opened.com and hope that you will also spread the word to others.

One of the most hopeful developments, however, is the rise of the “open educational resources,” or OER, movement. This fledgling but fast-growing movement seeks to make textbooks, courses, videos, taped lectures, software and other materials available free online, without copyright or technical restrictions.

Most OER projects used to be experiments conducted on the fringe of higher education with little recognition or support. But now, various commons are starting to discover each other and collaborate with each other. Its leaders see themselves not as some marginal effort, but as a movement that is challenging unresponsive markets, improving the quality of educational materials and making learning more affordable for everyone.

Photo by djfoobarmatt , via Flickr, licensed under a Creative Commons BY-NC license.

The OER Commons is one of the chief clearinghouses on the Web for this activity. The website provides a single point of online access for educators, students and learners of all types to find, browse and obtain OER materials. It also encourages the re-use and improvement of OER materials. Much credit must go to The William and Flora Hewlett Foundation for its steadfast commitment to funding OER initiatives and seeding the movement more generally.

The OER movement is trying to build new bridges among existing projects, many of which are expanding at impressive rates. A brief overview:

• MIT’s OpenCourseWare project has placed the course materials for more than 1,800 courses in 33 disciplines online. Now more than 120 educational institutions in twenty nations have banded together to form the OpenCourseWare Consortium, to create “a broad and deep body of open educational content using a shared model.”
• Rice University’s Connexions project is a repository of more than 5,800 “learning modules” in more than 344 “collections,” all of which are open, re-usable and adaptable by teachers and students alike. More than a million people from 194 countries use Connexions materials.
• Textbooks and educational materials produced by a given discipline can now be shared online and then printed on-demand. QOOP, the print-on-demand publishing partner of Connexions, for example, makes it possible for students to obtain a hardback textbook that normally sells for $125, for only $25.

• Another textbook alternative is being pioneered by the Foothill De Anza Community College in Silicon Valley. It has banded together with other two-year colleges in California to create open-licensed digital textbooks that can be printed on-demand. This model lets professors update and revise textbooks frequently and easily, and costs much less than conventional print textbooks. This is especially important for community college students, who in 2007-08 spent 60 percent of their educational expenses on textbooks.

The student-run Public Interest Research Groups have also become active in promoting open textbooks. Their Make Textbooks Affordable campaign is encouraging professors to use course materials that are as affordable and accessible as possible.

There is a lot of ferment in OER activity, as this quick survey suggests. (For a longer overview, see this excellent 84-page report to the Hewlett Foundation. ) But clearly much more needs to be done to validate the advantages of educational commons and take their activities to a higher level.

It is Saturday night at the Indian Lake Theater in the small town of Indian Lake, New York. The coming attractions have only been playing for five minutes when the sound slows down and the screen suddenly turns black. I am the projectionist so I rush upstairs and find a tangled pile of film unraveling out of the projector onto the floor.

Folks in Indian Lake, New York, saved their local movie theater as a community commons.

I run back downstairs to face the puzzled crowd. “Hi everyone. As you know, I’m new at this,” I say. “I’m not exactly sure what happened, but I’m going to do my best to fix the problem and get the movie running again in no time.” To my nervous surprise, the crowd cheers.

The Indian Lake Theater, in this small town of 2,000 in the Adirondack mountains, closed for two years. So moviegoers are grateful to have this important cultural common space back, and they’re willing to give it a chance.

When the town lost its beloved theater in 2006, it not only lost the option for residents to see the latest Hollywood hit on a Saturday night, but also lost one of the most important community gathering spots. The theater is literally located in the center of Indian Lake, just across from the post office and a short walk from the majority of the town’s businesses and restaurants. Over the years it has been the principal venue for Hollywood as well as classic and independent films. In addition, community theater shows and concerts by professional and school musicians—in fact, group gatherings of all kinds— have regularly packed the house.

About 30 minutes go by and I am still struggling to fix the film. Despite the long wait, the crowd is having a great time. They visit the concessions stand and catch up with neighbors and friends. I offer to give the audience their money back. A few people leave but refuse the return of their money. They figure the Indian Lake Theater needs it more than they do.

Finally, after 15 more minutes I fix the film. The audience erupts with roaring cheers.

When the Indian Lake Theater was closed, the town’s culture suffered along with the local economy. The theater provided a hub that allowed both local citizens and outside visitors to connect easily with other activities and services in town. Many local merchants businesspeople reported that the closing of the theater had adversely affected their businesses – from the ice cream shops, to hotel and cabin rental businesses, local restaurants and antique stores.
Once a small town loses its theater, when the seats are pulled out and the projector sold, a sense of community spirit is lost along with the movies.

But a group of local citizens in the Indian Lake area came together in fall of 2007 to devise a plan for purchasing and reopening the theater as a non-profit community stage and screen. A community board of directors, whose mission is strengthening the sense of community as well as watching the bottom line, now manages the theater. Ben Strader, managing director of the Blue Mountain Center, is the president. The Theater now has a paid director and local young people make good wages selling tickets and popcorn. A corps of volunteers handle other tasks that makes it possible for the Indian Lake Theater to host other events such as school music and theater productions, public meetings and even a Magic Lantern performance to celebrate the town’s sesquicentennial. All this, and Indiana Jones, too, along with independent movies. The theater is now more of a town commons than ever.

Harriet Barlow, Senior Fellow of On The Commons and founding director of the nearby Blue Mountain Center, who helped organize efforts to save the theater, notes “The Theater provides a sort of living room for the community, a rare opportunity for cooperation and collaboration. Most of all, it makes people happy!”

When the theater reopened last spring word spread across the Adirondacks and many folks sent donations to support it. Now, with this vision of a community center in place, the theater hopes to provide economic stimulus to the town, while breathing new life into the cultural scene of Indian Lake and the surrounding region.

The Indian Lake Theater, Blue Mountain Center and On The Commons are exploring the possibilities of creating a national network of community theaters. For more information, contact Harriet Barlow at hbarlow@onthecommons.org.

The obvious solution is private investment. Or at least, that’s the only solution that the Times explores (notwithstanding a misleading headline on the online version of the story, “Cities Debate Privatizing Public Infrastructure”).

Anderson supplies no critical analysis of why governments and politicians are failing to make needed infrastructure investments, or how government might pursue public-spirited alternatives to private equity. Instead, we hear Norman Mineta, a former U.S. transportation secretary and now an adviser to Credit Suisse, blandly explain, “Budget gaps are starting to increase the viability of public-private partnerships.”

The Times story amounts to a hot tip to the investor class: “Vulnerable public assets await your predatory attention. Big ROI is assured!”

Photo, “Bay Bridge Silhouette,” by Thomas Hawk, via Flickr, licensed under a Creative Commons BY-NC license.

Republicans and investors have long railed against “big government” while enjoying government’s “liquidity backstopping” (Bear Stearns, Fannie Mae, Freddie Mac) and government borrowing to finance reckless foreign wars. Now that such bleeding of government has led to crumbling infrastructure, Wall Street, in a fine thank you to its benefactor, wants to go in for the kill. Groups like Goldman Sachs, Morgan Stanley and the Carlyle Group have amassed some $250 billion to take public infrastructure private.

Standing ready to help them are politicians who have abandoned their commitment to government except as a tool for military aggression and a way station to lucrative private employment. Such politicians are only too ready to enter into “partnerships” that traduce the public interest. The Anderson article gives such politicians plenty of reason to feel complacent. It offers sales pitches from the executives of investment banks and ideological pap from the libertarian-minded Reason Foundation. The privatization of public roads and bridges is cast as a brilliant, natural innovation. Anderson ignores the compelling economic and public-interest reasons for managing and financing public infrastructure through government.

As it happens, Phineas Baxandall, a senior tax and budget analyst at U.S. PIRG, offered an extensive analysis of these very issues in an essay here on OntheCommons.org a few months ago. His piece was based on a report on the subject that he had previously written for U.S. PIRG. Baxandall makes a number of points that Anderson ignores entirely:

Governments can borrow upfront sums at substantially lower cost than can private companies. A private entity will have higher capital borrowing costs and must divert some revenues to shareholder profits. So even at its most basic financial level, privatization is not advantageous to the public.

Perhaps even more than these fiscal problems, long-term road contracts pose a variety of serious threats to the public interest. These include fragmentation and a loss of public control over transportation policy, and an inability to prescribe future needs in contracts signed decades earlier… For example, some privatization contracts explicitly limit the state’s ability to improve or expand nearby roads. Private investors fearing that improved free roads would compete with their paying traffic, have obtained non-compete clauses in California and Colorado, and to a lesser extent, in Indiana.

Instead of examining such issues, Anderson merely notes the political backlash that some politicians have suffered. After Indiana Governor Mitch Daniels granted a 75-year lease on a state road for $3.8 billion, drivers began to sport bumper stickers that read, “Keep the toll road, lease Mitch.” Without further facts, the article makes it seem as if Indiana drivers are a bunch of ignorant yahoos who stupidly oppose taking Wall Street’s money.

Indeed, Anderson makes it seem slightly insane not to privatize infrastructure. She writes: “And then there is the odd romance between Americans and their roads: they do not want anyone other than the government owning them.”

This is followed by a self-serving quote from the head of infrastructure investment banking at Credit Suisse, who breathlessly warns, “There’s a huge opportunity that the U.S. public sector is in danger of losing. It thinks there is a boatload of capital and when it is politically convenient it will be able to take advantage of it. But the capital is going into infrastructure assets available today around the world and not waiting for projects the U.S. the public sector [sic] may sponsor in the future.”

Behind all the genteel business-speak, allow me to offer a plain-speak translation of what the New York Times business section declared today:

“Hurry, hurry, hurry! Step right up and sell off your public infrastructure treasures financed by generations of previous taxpayers! Give them to Wall Street – whom you just bailed out at discount prices – and let them earn fantastic, guaranteed rates of return for decades to come while cutting amenities and ignoring evolving public needs. You poor schlumpy taxpayers can continue to shoulder the high-risk, long-term investments. And if any of those public assets begin to look attractive – say, the Internet, wifi spectrum or federally financed drug research — why, we’ll be sure to swoop down and be the first take them away from you. After all, we have more money and better access to your elected leaders than you do!”

The New York Times is a great institution, but can we please shed the “liberal” moniker that is so often attached to it? A precious commons is threatened by enclosure, and all we hear is cheering.

Before my very eyes citizens are rushing in to fill a vacuum left by news media consolidation and the debilitating loss of expert, professional reporting staff. Some laid off or pushed out journalists of note, still committed to their calling and their communities, are shaping digital, online public political discussion that incorporates new voices.

The democratic process, which depends on information gathering, analysis and dissemination, is a commons in peril. Hopeful, optimistic citizen advocates for local causes are turned cynical by the stronghold of money on political races, policy makers and the press. Even jaded operatives are waking up to the taint of money in national campaigns and efforts to pass legislation.

What is a commons? I think about it differently at different times—there is no ironclad definition. However I always say that the commons is one of these things: a natural resource that is freely inherited (such as water, biodiversity, or DNA) or a cultural resource (such as scientific knowledge or language) or social conventions and structures created by people, (such the stock market or a transit system). A commons may exist within or outside of a marketplace but it is best cared for by a collective rather than left to free market forces or government neglect and ineffective management. A commons may not be noticed until it is take away—as has happened with our precious clean air. A commons is something that really ought to belong to everybody, not just the rich, the privileged or whomever got there first.

But it looks like rescue is on the way for the commons of democratic discourse and practice—from small efforts to the global network of the iCommons My colleague David Bollier just presented this speech at the iCommons conference on the emergence of the commons sector.

The emerging political information commons here in the States is perhaps partly a re-birthing. Lessons can be learned from some of the old timers of media access. Decades ago I worked for a media organization—one of many student and community video access facilities proliferated throughout the country in the early 70’s. The advent of portable, consumer grade recording equipment (if you could call a hundred pounds of reel-to-reel videotape deck and gear portable) unleashed a wave of citizen news reporting, documentation, community broadcasting, screenings and video distribution that seems to be forgotten today.

The organization was University Community Video, now called Intermedia Arts. I catalogued a closet full of tapes from the early days for our state historical society that included: coverage of Vietnam War protests; eyewitness accounts of Native American legal battles; testimony by Black Americans displaced from housing by urban renewal; shows about women on welfare, rural poverty, and teenage pregnancy; early reporting on the AIDS epidemic; political satire; experimental dance and music; and profiles of unusual local personalities and businesses. A generation marched and alternative media makers were there to cover it—because nobody else did.

Our sister effort was low power community radio. Our cousins were neighborhood and under represented constituency newspapers and journals.

The current citizen journalism powered by the proliferation of inexpensive, easy ways to produce blogs, vlogs, text messages and news aggregators seems like déjà vu. The technologies and constituencies of this new brand of citizen journalism are crossing over and melding just as the old ones did. Yes, the old standard was analog and limited to broadcast over the airwaves and the new technology is digital and travels the globe almost at the speed of light, but the spirit is the same.

Today I see what is happening with commons sensitive eyes. I see implicit commons sector principles and organizing tactics in many of the new brand of public, participatory arts and media groups. Flat, non-hierarchical, decentralized management, born of necessity AND intention, make for porous organizations that let cross disciplinary magic happen. The next evolution of collaborative cross-fertilization, a messy process artists and cultural workers are uniquely comfortable with, is commons consciousness across isolated issue divides. And new communication technologies give these fertile parings new wings—for cheap.

I am compelled to deliver a word of caution for the online commons to remember to connect with well grounded groups that originate in diverse communities. I implore you to teach and adhere to important tenets of the commons: hold out for equity of access and benefit for all from a commons resource, protect it’s integrity, replenish it, and pass it on whole.

I worry about the possibility that practitioners of citizen reporting and arts activists are giving lip service only to nonpartisanship. Moderate the enthusiasm just a bit to insist on principles of accuracy and even-handedness. A commons approach eschews partisanship and ideology. The idea is not to build a new party or a new government. A commons viewpoint is neither left or right, progressive or conservative, Democratic, Republican, Libertarian or Green. It is not anti-Capitalist, although at first glance it may seem so. Commons thinking transcends these divisions. Commons is an old worldview of mutual responsibility and collective care that we all need to learn again.

With that said, hooray for The Unconvention. Hooray for interesting, engaging political actions powered by citizens like the imaginative “Your Yard, Our Message” lawn sign contest, eclectic personal messages on YouTube as part of “I Approve This Message,” (here is mine ) and courageous acts like “Kulture Klub Art Shanties” that claim space and give a political voice to youth experiencing homelessness.

Long live the commons. Long live democracy. Citizen journalist Kathleen Maloney signing off for now.

But in a surprising instance of man-bites-dog, the people of Montana have fought the privatization of the phrase “the last best place” – and won. With help from Montana Governor Brian Schweitzer and Senator Max Baucus, the U.S. Senate is expected to pass legislation this year that would prohibit the Commerce Department from granting a trademark for that particular phrase. This means that the people of Montana, the State of Montana and small businesses throughout the state will be able to refer to their state as “the last best place.”

Photo by Stuck in Customs, via Flickr, licensed under a Creative Commons BY-NC-SA license.

The controversy had its beginnings in 1988 when a professor of writing at the University of Montana, William Kittridge, and Annick Smith, published an anthology of Montana writers called “The Last Best Place.” The phrase had such an immediate resonance with people in the state that everyone from real estate brokers to motels to the state tourist office began using the phrase to describe Montana. It became a way of expressing one’s identification with and affection for this vast state of enormous natural beauty and its one million inhabitants.

Enter Las Vegas businessman David E. Lipson. One of his businesses, according to one reporter, tried to obtain a trademark on the phrase. He wanted to use it to market a variety of his businesses, including The Last Best Beef. The trademark application was so broad, says a Washington trademark lawyer cited by the New York Times (August 17, 2008) that it would have given Lipson a “de facto monopoly” on use of the term. In 2004, Montana Senator Conrad Burns tried to slip an amendment into a budget bill to prevent the registration of the phrase as a trademark. But Lipson challenged the bill in court. He won at the district court level and then lost on appeal.

Now, to put the matter to rest and prevent any future challenges, Senator Baucus has introduced a stronger, more ironclad version of the legislation that has now passed in the relevant Senate and House Committees, and is expected to become law.

Perhaps there is a lesson in all this. Why shouldn’t other popular expressions be granted some sort of immunity from corporate privatization? Why should Nike, McDonald’s, Coca-Cola or Kodak be able to march in and legally “steal” for itself a phrase or image that morally belongs to the people, or some distinct collective, who gave it social currency (and thus cash value) in the first place?

Among the world’s burning issues, the deficiencies of trademark law in protecting socially created value may not be at the top of the list. On the other hand, protecting the symbols of identity and community pride is no small matter, either. Just as the citizens of Montana.

Still image from YouTube video by Stephanie Lenz.

With the high-handed arrogance to which copyright holders have become accustomed, Universal Music sent a cease-and-desist letter to a Pennsylvania mother who had uploaded a 29-second video of her toddler dancing to a garbled Prince song playing in the background. In a rare turn of events, the mother, Stephanie Lenz, sued Universal for sending her a meritless “takedown notice.” She said the notice harmed her fair use and free speech rights, and she wants damages in return.

“I was really surprised and angry when I learned my video was removed, Lenz told the Electronic Frontier Foundation, which helped her bring her lawsuit. “Universal should not be using legal threats to try to prevent people from sharing home videos of their kids with family and friends.” EFF staff attorney Corynne McSherry said that “Universal’s takedown notice doesn’t even pass the laugh test. Copyright holders should be held accountable when they undermine non-infringing, fair uses like this video.”

Universal ultimately declined to argue that the video wasn’t fair use. But the company did argue that its mere assertion of a copyright violation should be sufficient justification for sending a takedown notice. Universal did not want to have to make a “fact-intensive inquiry” before sending out a notice, presumably because that would be too costly and time-consuming. And besides, Universal implied, it knows what is a copyright infringement. (Or in this case, Prince himself, who by one news report was directly involved in instigating the takedown notice in the first place.)

In other words, Universal Music wants to place the burden on individuals to vindicate their fair use rights when confronted with large corporations with armies of lawyers making unilateral assertions. Talk about ‘let’s go crazy’!

Federal judge Jeremy Fogel implicitly rejected this scenario and insisted that companies are perfectly capable of making fair-use determinations before they send out takedown notices. The judge’s ruling is a cold slap in the face for corporate copyright holders, who routinely threaten individuals with groundless cease-and-desist letters and act as if fair use is a legal triviality. By refusing to dismiss the case – and by squarely affirming the importance of citizens’ fair use rights – Judge Fogel delivers a welcome message that copyrights are not sweeping and absolute. The public’s fair use rights matter. Further evidence that fair use may be getting its groove back.